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Hohfeld,  Wesley  Newcomb 

Fundamental  legal 
conceptions 


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FUNDAMENTAL 
LEGAL  CONCEPTIONS 

AS  APPLIED   IX  .JTDIC  L\L   REASONING. 

AND  OTHER  LEGAL  ESSAYS 

BY 

WESLEY  NEWCOMIJ  llOHEELD 

LATE  SOUTHMAYD  PROFESSOR  OF  LAW  IN 
YALE   UNIVERSITY 

EDITED  BY 
WALTER  WHEELER  COOK 

FORMERLY  PROFESSOR  OF  LAW  IN  YALE  UNIVERSITY 
PROFESSOR  OF  LAW  IN  COLUMBIA  UNIVERSITY 


NEW  HAVEN 
YALE  UNIVERSITY  PRESS 

LONDON  •  HLMPHREY  MILFORD  •  OXFORD  UNIVFRSFrV  PRESS 

MDCCCCXX  * 


COPYRIGHT,  1919,  BY 
YALE  UNIVERSITY  PRESS 


FIRST   PDBLISHED,    1919 
SECOND   PRINTING,    1920 


IXTKODLCTIOX 

HOHFELD'S  COXTKIBUTIOXS  TO  THE 
SCIEXCK  OF  LAW 

It  is  a  commonplace  that  the  vast  majority  of  the  members  of  the 
legal  profession  in  English-speaking  countries  still  regard  "juris- 
prudence" in  all  its  manifestations,  and  especially  that  branch  of  it 
commonly  knoA\Ti  as  "analytical  jurisprudence,"  as  something  aca- 
demic and  without  practical  value.  It  is  believed  that  the  chief  reason, 
or  at  least  one  of  the  reasons,  for  this  view  is  not  hard  to  discover. 
Almost  Avithout  exception  the  writers  who  have  dealt  with  the  subject 
seem  to  have  proceeded  upon  the  theory  that  their  task  was  finished 
when  they  had  set  forth  in  ortlerly  and  logical  array  their  own  analysis 
of  the  nature  of  law,  of  legal  rights  and  duties,  and  similar  things. 
That  the  making  of  this  analysis — aside  from  the  mere  intellectual 
joy  of  it — is  not  an  end  in  itself  l)ut  merely  a  means  to  an  end,  these 
writers  perceive  only  dimly  or  not  at  all;  that  the  analysis  presented 
has  any  utility  for  the  lawyer  and  the  judge  in  solving  the  problems 
which  confront  them,  they  do  not  as  a  rule  attempt  to  demonstrate; 
much  less  do  they  show  that  utility  by  practical  application  of  the 
analysis  to  the  solution  of  concrete  legal  problems. 

In  the  opinion  of  the  present  writer  one  of  the  greatest  messages 
which  the  late  Wesley  Newcomb  Ilohfeld  during  his  all  too  short  life 
gave  to  the  legal  profession  was  this,  that  an  adetjuate  analytical 
jurisprudence  is  an  absolutely  indispensa])le  tool  in  the  etiuipment  of 
the  properly  trained  lawyer  or  judge — indispensable,  that  is.  for  the 
highest  efficiency  in  the  discharge  of  the  daily  duties  of  his  profes- 
sion. It  was  Hohfeld's  great  merit  that  he  saw  that,  interesting  as 
analytical  jurisprudence  is  when  pursued  for  its  own  sakf.  its  chief 
value  lies  in  the  fact  that  by  its  aid  the  correct  solution  of  legal 
problems  becomes  not  only  easier  but  more  certain.  In  this  respect 
it  does  not  differ  from  any  other  l)ranch  of  ]nire  science.  "We  must 
hasten  to  add.  lest  we  do  an  injustice  to  Hohfeld's  memory  by  thus 
emphasizing  his  work  along  the  line  of  analytical  jurisprudence,  that 
no  one  saw  more  clearlv  than   he  that   while  the  analvtical  matter 


1  Eeprinted,  by  permission,  from  (1919)  28  Yale  Law  Journal,  721. 


4  FUNDAMENTAL  LEGAL  CONCEPTIONS 

is  au  indispensable  tool,  it  is  not  an  all-sufficient  one  for  the  lawyer. 
On  the  contrary,  he  emphasized  over  and  over  again — especially  in 
his  notable  address  before  the  Association  of  American  Law  Schools 
npon  A  Vital  School  of  Jurisprudence — that  analytical  work  merely 
paves  the  way  for  other  branches  of  jurisprudence,  and  that  without 
the  aid  of  the  latter  satisfactory  solutions  of  legal  problems  cannot 
be  reached.  Thus  legal  analysis  to  him  was  primarily  a  means  to  an 
end,  a  necessary  aid  both  in  discovering  just  what  the  problems  are 
which  confront  courts  and  lawyers  and  in  finding  helpful  analogies 
which  might  otherwise  be  hidden.  If  attention  is  here  directed  chiefly 
to  Hohf eld's  work  in  the  analytical  field,  it  is  by  reason  of  the  fact 
that  the  larger  portion  of  his  published  writings  is  devoted  to  that 
subject,  in  which  he  excelled  because  of  his  great  analytical  powers 
and  severely  logical  mind. 

Hohf  eld's  writings  consist  entirely  of  articles  in  legal  periodicals 
and  are  scattered  through  the  pages  of  several  of  these,  as  the  following 
list  will  show : 

The  Nature   of  Stockholders'  Individual  Liability  for   Corporation 

Debts  (1909)  9  Columbia  Law  Review,  285. 
The  Individual  Liability  of  Stockholders  and  the  Conflict  of  Laws 

(1909)  9  Columbia  Law  Review,  492;   (1910)   10  ibid.,  283;  10 

ibid.,  520. 
The  Relations  Between  Equity  and  Law   (1913)    11  Michigan  Law 

Review,  537. 
Some  Fundamental  Legal  Conceptions  as  Applied  in  Judicial  Reason- 
ing (1913)  23  Yale  Law  Journal,  16;  (1917)  26  ibid.,  710. 
The  Need  of  Remedial  Legislation  in  the  California  Law  of  Trusts  and 

Perpetuities  (1913)  1  California  Law  Review,  305. 
A  Vital  School  of  Jurisprudence  and  Law    (1914)    Proceedings  of 

Association  of  American  Law  Schools. 
The  Conflict  of  Equity  and  Law  (1917)  26  Yale  Law  Journal,  767. 
Faulty  Analysis  in  Easement  and  License  Cases  (1917)  27  Yale  Law 

Journal,  66. 

At  the  time  of  his  illness  and  death  Hohfeld  was  planning  the  comple- 
tion and  publication  in  the  immediate  future  of  the  analytical  work 
so  well  begun  in  the  three  articles  which  must  be  regarded  as  the  most 
important  contributions  which  he  made  to  the  fundamentals  of  legal 
theory,  viz.,  the  two  upon  Fundamental  Legal  Conceptions  as  Applied 
in  Judicial  Reasoning,  and  the  one  upon  The  Relations  Between  Equity 
and  Law.  These  three  essays  contain  in  broad  outline  what  are 
perhaps  the  most  important  portions  of  the   contemplated  treatise. 


IXTRODUCTIOX  5 

Buried  away  in  tht*  pages  of  the  magazines  in  which  they  were  pub- 
lished they  are,  like  so  many  oilier  important  discussions  in  the  legal 
periodicals,  ])ut  little  known  evt'n  to  the  more  intelligent  and  better 
educated  of  the  practicing  lawyers  and  judges,  or  indeed  of  the  law 
teachers  of  the  country.  If  the  present  number  of  the  Journal  suc- 
ceeds in  bringing  these  discussions  to  thf  attention  of  a  larger  number 
of  the  legal  i)rofession  it  will  have  accomplished  its  purpose. 

"'  Finulanu  ntal  Lcfjal  Conceptions  as  Applied  in  Judiiinl  Beacon- 
ing"— the  very  title  reveals  the  true  character  of  Iloliffld's  interest 
in  the  analytical  field.  ''As  applied  in  judicial  reasoning" — that  is 
the  important  thing;  fundamental  legal  conceptions  not  in  the 
abstract,  but  used  concretely  in  the  solving  of  the  practical  problems 
which  arise  in  the  everyday  work  of  lawyer  and  judge. 

Before  we  examine  the  main  outlines  of  the  structure  which 
Hohfeld  had  planned  and  started  to  build,  let  one  thing  be  clearly 
said.  Xo  one  realized  more  clearly  than  did  he  that  none  of  us  can 
claim  to  have  been  the  originator  of  any  very  large  portion  of  any 
science,  be  it  legal  or  physical.  It  is  all  that  can  be  expected  if  each 
one  of  us  succeeds  in  adding  a  few  stones,  or  even  one,  to  the  ever- 
growing edifice  which  science  is  rearing.  It  follows  that  anything 
which  one  writes  must  largely  be  made  up  of  a  restatement  of  what 
has  already  been  said  by  othei*s  in  another  form.  Each  one  of  us 
may  congratulate  himself  if  he  has  added  something  of  value,  even 
if  that  consists  only  in  so  rearranging  the  data  which  others  have 
accumulated  as  to  throw  new  light  upon  the  subject — a  light  which 
will  serve  to  illuminate  the  pathway  of  those  who  come  after  us  and 
so  enable  them  to  make  still  further  progress. 

In  the  first  of  the  two  essays  upon  Fundamental  Legal  Concep- 
tions Hohfeld  sets  forth  the  eight  fundamental  conceptions  in  terms 
of  which  he  believed  all  legal  problems  could  be  stated.  He  arranges 
them  in  the  following  scheme  : 

Jural  Opposites 

Jural  Correlatives 

One  thing  which  at  once  impresses  itself  upon  one  who  is  familiar 
with  law,  and  especially  with  the  work  of  writers  uj)on  jurisjunnlence 
who  preceded  Hohfeld.  is  that  the  terms  found  in  this  scheme  are  with 
one  exception  not  new.  l)Ut  have  always  been  more  or  less  frei|uently 
used.  To  be  sure,  they  have  not  ordinarily  l)een  used  with  precision 
of  meaning  as  in  the  taltle  we  are  considering;  on  the  contrary,  they 


fright 

privilege 

power 

immunity 

)  no-right 

duty 

disability 

liability 

(right 

privilege 

power 

immunity 

jduty 

no-right 

liability 

disability 

6  FUNDAMENTAL  LEGAL  CONCEPTIONS 

have  been  given  one  meaning  by  one  person,  another  by  another,  or 
indeed,  different  meanings  by  the  same  person  upon  different  occa- 
sions. It  is  also  true  that  nearly  all  the  concepts  which  these  terms 
represent  in  Hohf eld's  system  have  been  recognized  and  discussed  by 
more  than  one  writer  upon  jurisprudence.^''  A  brief  consideration 
serves  to  show,  however,  that  the  concepts  and  terras  which  are  new 
are  needed  to  logically  complete  the  scheme  and  make  of  it  a  useful 
tool  in  the  analysis  of  problems.  "When  so  completed,  these  legal 
concepts  become  the  "lowest  common  denominators"  in  terms  of 
which  all  legal  problems  can  be  stated,  and  stated  so  as  to  bring  out 
with  greater  distinctness  than  would  otherwise  be  possible  the  real 
questions  involved.  Moreover,  as  previously  suggested,  the  writers 
who  did  recognize  many  of  these  concepts  failed  to  make  any  real 
use  of  them  in  other  portions  of  their  work.' 

That  the  word  right  is  often  used  broadly  to  cover  legal  relations 
in  general  has  probably  been  at  least  vaguely  realized  by  all  thought- 
ful students  of  law.  Thus,  to  take  a  concrete  example,  nearly  all  of  us 
have  probably  noted  at  some  time  or  other  that  the  "right"  (privilege) 
of  self-defense  is  a  different  kind  of  "right"  from  the  "right"  not 
to  be  assaulted  by  another ;  but  that  legal  thinking  can  never  be  truly 
accurate  unless  we  constantly  discriminate  carefully  between  these 
different  kinds  of  rights,  few  of  us  have  sufficiently  realized.  We 
constantly  speak  of  the  right  to  make  a  will;  the  right  of  a  legis- 
lative body  to  enact  a  given  statute;  of  the  right  not  to  have  one's 
property  taken  without  due  process  of  law,  etc.  In  these  and  innumer- 
able other  instances  it  turns  out  upon  examination  that  the  one  word 
"right"  is  being  used  to  denote  first  one  concept  and  then  another, 
often  with  resulting  confusion  of  thought. 

With  the  clear  recognition  of  the  fact  that  the  same  term  is  being 
used  to  represent  four  distinct  legal  conceptions  comes  the  conviction 
that  if  we  are  to  be  sure  of  our  logic  we  must  adopt  and  consistently 
use  a  terminology  adequate  to  express  the  distinctions  involved.  The 
great  merit  of  the  four  terms  selected  by  Hohfeld  for  this  purpose — 
right,  privilege,  power  and  immunity — is  that  they  are  already 
familiar  to  lawyers  and  judges  and  are  indeed  at  times  used  with 
accuracy  to  express  precisely  the  concepts  for  which  he  wished  always 
to  use  them. 

Right  in  the  narrow  sense — as  the  correlative  of  duty — is  too  well 

la  Terry,  Leading  Principles  of  Anglo-American  Law,  eh.  YI,  84-138;  Salmond, 
Jurisprudence  (4th  ed.),  ch.  X,  179-196. 

2  Terry  seems  to  the  present  writer  the  only  one  who  even  glimpsed  the  impor- 
tance of  these  concepts  in  the  actual  analysis  and  settlement  of  legal  problems. 


INTRODUCTION  7 

known  to  require  extended  discussion  at  this  point.  It  signifies  one's 
aftirniative  claim  against  another,  as  distinguished  from  "privilege," 
one 's  freedom  from  the  right  or  claim  of  another.  Privilege  is  a  terra 
of  good  repute  in  the  law  of  defamation  and  in  that  relating  to  the 
duty  of  witnesses  to  testify.  In  defamation  we  say  that  under  certain 
circumstances  defamatory  matter  is  "privileged,"  that  is,  that  the 
person  publishing  the  same  has  a  privilege  to  do  so.  By  this  state- 
ment we  are  not  asserting  that  the  person  having  the  privilege  has 
an  affirmative  claim  against  another,  i.e.,  that  that  other  is  under  a 
duty  to  refrain  from  publishing  the  defamatory  matter,  as  we  are 
when  we  use  ''right"  in  the  strict  sense,  but  just  the  opposite.  The 
assertion  is  merely  that  under  the  circumstances  there  is  an  absence 
of  duty  on  the  part  of  the  one  pu])lishing  the  defamatory  matter  to 
refrain  from  doing  so  under  the  circumstances.  So  in  reference  to 
the  duty  of  a  witness  to  testify :  upon  some  occasions  we  say  the 
witness  is  privileged,  i.e.,  that  under  the  circumstances  there  is  an 
absence  of  duty  to  testify,  as  in  the  case  of  the  privilege  against  self- 
incrimination.^  "Privilege"  therefore  denotes  absence  of  duty,  and 
its  correlative  must  denote  absence  of  right.  Unfortunately  there  is 
no  term  in  general  use  which  can  be  used  to  express  this  correlative 
of  privilege,  and  the  coining  of  a  new  term  was  necessary.  The  terra 
devised  by  Hohfeld  was  "no-right,"  obviously  fashioned  upon  an 
analogy  to  our  common  words  nobody  and  nothing.  The  exact  term 
to  be  used  is,  of  course,  of  far  less  importance  than  the  recognition 
of  the  concept  for  which  a  name  is  sought.  The  terms  "privilege" 
and  "no-right,"  therefore,  denote  respectively  absence  of  duty  on 
the  part  of  the  one  having  the  privilege  and  absence  of  right  on  the 
part  of  the  one  having  the  "no-right."* 

All  lawyers  are  familiar  with  the  word  "power"  as  used  in  refer- 
ence to  "powers  of  appointment."  A  person  holding  such  a  "power" 
has  the  legal  ability  by  doing  certain  acts  to  alter  legal  relations,  viz., 
to  transfer  the  ownership  of  property  from  one  person  to  another. 
Now  the  lawyer's  woi-ld  is  full  of  such  legal  "powers,"  and  in  Tloh- 
f eld's  terminology  any  human  being  who  can  by  his  acts  produce 
changes  in  legal  relations  has  a  legal  power  or  powers.     Whenever  a 


3  Here  the  statement  that  tlnic  :^  a  "right"  agajnst  self-crimination  does 
indeed  carry,  in  addition  to  the  idea  of  privilege,  that  of  a  right  stricto  smsu,  and 
also,  when  the  general  ''right"  in  question  is  given  by  the  constitution,  of  legal 
immunity,  with  correlative  lack  of  constitutional  power,  i.e.,  disability,  on  the  part 
of  the  legislative  body  to  abolish  the  privilege  and  the  right. 

*  Doubtless  some  will  deny  that  these  conceptions — privilege  and  no-right — are 
significant  as  representing  legal  relations.  See  the  brief  discussion  of  this  point 
by  the  present  writer  in  (1918)  28  Yale  Law  Journal,  391. 


8  FUNDAMENTAL  LEGAL  CONCEPTIONS 

» 

power  exists,  there  is  at  least  one  other  human  being  whose  legal 
relations  will  be  altered  if  the  power  is  exercised.  This  situation 
Hohfeld  described  by  saying  that  the  one  whose  legal  relations  will 
be  altered  if  the  power  is  exercised  is  under  a  "liability."  Care 
must  be  taken  to  guard  against  misapprehension.  "Liability"  as 
commonly  used  is  a  vague  term  and  usually  suggests  something  dis- 
advantageous or  burdensome.  Not  so  in  Hohfeld 's  system,  for  a 
"liability"  may  be  a  desirable  thing.  For  example,  one  who  owns  a 
chattel  may  "abandon"  it.  By  doing  so  he  confers  upon  each  person 
in  the  community  a  legal  power  to  acquire  ownership  of  the  chattel  by 
taking  possession  of  it  with  the  requisite  state  of  mind.^  Before  the 
chattel  is  abandoned,  therefore,  every  person  other  than  the  owner  is 
under  a  legal  "liability"  to  have  suddenly  conferred  upon  him  a  new 
legal  power  which  previously  he  did  not  have.  So  also  any  person  can 
by  offering  to  enter  into  a  contract  with  another  person  confer  upon 
the  latter — without  his  consent,  be  it  noted — a  power  by  ' '  accepting ' ' 
the  offer  to  bring  into  existence  new  legal  relations.®  It  follows  that 
every  person  in  the  community  who  is  legally  capable  of  contracting 
is  under  a  liability  to  have  such  a  power  conferred  upon  him  at  any 
moment. 

Another  use  of  the  term  "right,"  possibly  less  usual  but  by  no 
means  unknown,  is  to  denote  that  one  person  is  not  subject  to  the 
power  of  another  person  to  alter  the  legal  relations  of  the  person 
said  to  have  the  ' '  right. ' '  For  example,  often  when  we  speak  of  the 
"right"  of  a  person  not  to  be  deprived  of  his  liberty  or  property 
without  due  process  of  law,  the  idea  sought  to  be  conveyed  is  of  the 
exemption  of  the  person  concerned  from  a  legal  power  on  the  part  of 
the  persons  composing  the  government  to  alter  his  legal  relations 
in  a  certain  Avay.  In  such  cases  the  real  concept  is  one  of  exemption 
from  legal  power,  i.e.,  "immunity."  At  times,  indeed,  the  word 
"immunity"  is  used  in  exactly  this  sense  in  constitutional  law.*^''    In 

5  That  is,  Tvith  the  intention  of  appropriating  it.  If  the  possession  were  taken 
merely  vrith  the  intention  of  keeping  it  for  its  owner,  the  interest  acquired  would 
be  merely  that  of  any  other  person  lawfully  in  possession,  with  an  added  power 
to  acquire  ownership  by  the  formation  of  an  intention  to  appropriate  the  article 
in  question.  In  either  case  the  other  members  of  the  community  would  simul- 
taneously with  the  assumption  of  possession  by  the  finder,  lose  their  powers  to 
acquire  ownership  of  the  article. 

6  For  an  application  of  the  above  analysis  to  the  formation  of  contracts,  see 
Corbin,  Offer  and  Acceptance,  and  Some  of  the  EesuUing  Legal  Relations,  (1917) 
26  Yale  Law  Journal,  169. 

6a  One  has,  to  be  sure,  a  right  (in  the  strict  sense)  not  to  be  deprived  of  his 
physical  liberty  or  tangible  ' '  property ' '  except  by  due  process  of  law,  and  doubt- 


INTRODUCTION  9 

Holifeld's  system  it  is  the  generic  term  to  (k'seribe  any  legal  situa- 
tion in  Avhieh  a  given  legal  relation  vested  in  one  person  can  not  be 
changed  by  the  acts  of  another  person."  Correlatively,  the  one  who 
lacks  the  power  to  alter  the  first  pei-son's  legal  relations  is  said  to  be 
under  a  ^'disability,"  that  is,  he  lacks  the  legal  power  to  accomplish 
the  change  in  (juestion.  This  concept  of  legal  "immunity"  is  not 
unimportant,  as  Salmond  in  his  Jurisprudence  seems  to  indicate 
by  placing  it  in  a  l)rief  footnote.  For  example,  the  thing  which  dis- 
tinguishes a  "spendthrift  trust"  from  ordinary  trusts  is  not  merely 
the  lack  of  power  on  the  part  of  the  cestui  cjue  trust  to  make  a  con- 
veyance of  his  interest,  but  also  the  immunities  of  the  cestui  from 
having  his  equitable  interest  divested  without  his  consent  in  order  to 
satisfy  the  claims  of  creditors.^  Ordinary  exemption  laws,  homestead 
laws,  etc.,  also  furnish  striking  illustrations  of  immunities." 

A  power,  therefore,  "bears  the  same  general  contrast  to  an  im- 
munity that  a  right  does  to  a  privilege.  A  right  is  one's  affirmative 
claim  against  another,  and  a  privilege  is  one 's  freedom  from  the  right 
or  claim  of  another.  Similarly,  a  power  is  one's  affirmative  'control' 
over  a  given  legal  relation  a.s  against  another;  whereas  an  immunity 
is  one's  freedom  fi-om  the  legal  power  or  'control'  of  anotlier  as 
regards  some  legal  relation.  "^*^ 

The  conceptions  for  which  the  terms  "liability"  and  "disability" 
stand  have  been  criticized  by  Dean  Pound  of  the  Harvard  Law  School 
as  being  "quite  without  independent  jural  significance.'"^  He  also 
regards  the  terms  themselves  as  open  to  objection  on  the  ground  that 

less  this  is  what  is  frequently  meant  when  it  is  said  that  one  has  the  "right''  in 
question.  At  other  times,  however,  the  idea  meant  to  be  conveyed  is  not  this, 
but  rather,  as  stated  in  the  text,  legal  exemption  from  power  on  the  part  of 
the  legislature  of  the  state  to  alter  one's  legjxl  relations  in  a  <>ertain  way.  In 
such  cases  the  word  "right"  really  stands  for  iminunitii. 

T  One  may,  of  course,  with  reference  t<i  any  given  legal  relation  or  set  of  rela- 
tions, have  an  immunity  against  one  person  and  not  against  another,  against 
people  generally  and  not  against  "everybody." 

8  C/.  the  situation  under  the  federal  TTomestcad  Exemption  Law.  discussed  in 
(1919)  28  Yale  Law  Journal,  2S3. 

9  Usually  a  person  having  an  immunity  is  also  vested  with  other  legal  relations 
which  accompany  it,  but  this  is  true  of  legal  relations  generally;  nearly  every 
situation  upon  analysis  turns  out  to  involve  a  more  or  less  conijdex  aggregate  of 
all  the  different  kinds  of  legal  relations.  The  vital  point  in  many  cases,  however, 
involves  primarily  the  presence  or  absence  of  an  immunity  rather  than  some  other 
legal  relation. 

10  Hohfeld,  in  the  article  in  23  Yale  Law  Journal;  see  p.  60.  infra. 

11  In  his  discussion  of  Legal  Eights  in  (1916)  26  International  Journal  of  Ethics, 
92,  97. 


10  FUNDAMENTAL  LEGAL  CONCEPTIONS 

''each  name  is  available  and  in  use  for  other  and  important  legal 
conceptions."  The  latter  point  while  important  is  after  all  a  ques- 
tion of  phraseology.  Upon  the  first  point,  it  is  difficult  to  follow 
Dean  Pound's  argument.  The  eight  concepts  of  Hohf eld's  classifi- 
cation are  the  means  by  which  we  describe  generically  the  legal 
relations  of  persons.  Any  given  single  relation  necessarily  involves 
two  persons.  Correlatives  in  Hohf  eld's  scheme  merely  describe  the 
situation  viewed  first  from  the  point  of  view  of  one  person  and  then 
from  that  of  the  other.  Each  concept  nnist  therefore,  as  a  matter  of 
logic,  have  a  correlative.  If  A  has  a  legal ' '  power, ' '  he  must  by  defini- 
tion have  the  legal  ability  by  his  acts  to  alter  some  other  person 's  legal 
relations.^'  If  so,  then — as  Dean  Pound  himself  recognizes  later  on 
in  the  same  discussion — that  other  person  "is  subject  to  have"  his 
legal  relations  "controlled  (altered)  by  another."  Certainly,  call  it 
what  you  will,  we  have  here  a  perfectly  definite  legal  concept,  the 
correlative  of  "power."  So  of  "disability":  If  A  is  legally  exempt 
from  having  one  or  more  of  his  legal  relations  changed  by  B's  acts, 
the  situation  as  seen  from  B  's  point  of  view  is  that  B  can  not  so  alter 
A's  relation,  i.e.,  B  is  under  a  legal  "disability."  Again  the  par- 
ticular term  may  be  open  to  criticism;  the  conception  involved  is  as 
clearly  the  correlative  of  ' '  immunity  "  as  "  no-right ' '  is  the  correlative 
of  "privilege";  nevertheless.  Dean  Pound  seems  to  recognize  the 
"independent  jural  significance"  of  the  latter^^  while  denying  that  of 
the  former. 

Rights,  privileges,  powers,  immunities — these  four  seem  fairly  to 
constitute  a  comprehensive  general  classification  of  legal  "rights"  in 
the  generic  sense.  The  four  correlative  terms — duty,  no-right,  lia- 
bility and  disability — likewise  sufficiently  classify  the  legal  burdens 
which  correspond  to  the  legal  benefits.^"'^  It  is  interesting  in  passing 
to  note  that  of  the  two  writers  who  preceded  Hohfeld,  neither  Terry 

12  His  own  also,  or  those  of  still  another  person,  as  where  an  agent  makes  a 
contract  for  a  principal;  but  in  each  case  he  can  not  act  so  as  to  alter  his  own 
or  this  other  person's  legal  relations  without  altering  at  the  same  time  the  first 
person's  relations,  since  the  concept  involved  is  of  the  legal  relation  of  one  person 
to  another  person.     A  lead  pencil  must  have  two  ends;  so  must  a  legal  relation. 

13  Dean  Pound  does  not  even  mention  immunity,  but  that  of  course  disappears 
as  a  fundamental  legal  conception  if  we  deny  the  jural  significance  of  its  cor- 
relative, disability.  Note  that  in  dealing  with  the  correlatives,  we  are  looking 
at  the  same  situation  from  the  point  of  view  of  first  one  and  then  the  other  of 
the  two  persons  involved,  but  that  when  dealing  with  the  jural  opposites  we  are 
looking  at  two  different  situations  from  the  point  of  view  of  the  same  person,  i.e. 
in  one  situation  he  has,  for  example,  a  right,  in  the  other,  ' '  no-right. ' ' 

13a  ' '  Burden ' '  is  here  used  loosely.  A  liability,  as  previously  pointed  out,  may 
be  a  beneficial  thing. 


iNTi^onrcTiox  11 

nor  Salniond  had  cotnplet od  llic  scIumir".  In  Tt-rrys  Principles  of 
Anglo-American  Law,  rights  slricto  scnsu  appear  as  "correspondent 
rights/'  privileges  as  "permissive  rights,"  powers  as  "faculative 
rights";  but  immunities  not  at  all.  Moreover  the  correlatives  are 
not  worked  out.  In  Salmond's  Jurisprudence  privileges  are  called 
*' liberties" — mere  question  of  phraseology, — innnunities  are  treated 
as  relatively  unimportant,  and  liability  is  treated  as  the  correlative  of 
both  liberty  (privilege)  and  power.  This  assignment  of  a  single 
correlative  for  two  independent  conceptions  must  result  sooner  or 
later  in  confusion  of  thought,  for  if  the  distinction  between  privilege 
and  power  be  valid — as  it  clearly  is — then  the  distinction  between  the 
correlatives,  no-right  and  lialiility.  must  be  e(jually  valid. 

The  credit  for  the  logical  completion  of  the  scheme  of  classifica- 
tion and  the  recognition  of  the  importance  of  each  element  in  it  may 
thus  fairly  be  given  to  Hohfeld.  It  is  believed  also  that  his  i)r('senta- 
tion  of  it  in  the  form  of  a  table  of  "jural  correlativt^s"  and  "jural 
opposites"  has  done  much  to  clarify  and  explain  it.  A  still  more 
important  thing,  as  has  been  suggested  above,  is  that  he  demonstrated 
how  these  fundamental  legal  concepts  were  of  the  utmost  utility  and 
importance  in  bringing  about  a  correct  solution  of  concrete  legal 
problems.  Here  also  credit  to  some  extent  nnist  in  all  fairness  be 
given  to  Terry,  as  above  indicated,  but  Ilohfeld  seems  to  the  present 
writer  to  be  the  first  one  who  appreciated  to  the  full  the  real  sig- 
nificance of  the  analysis.  In  the  first  of  the  articles  upon  F'undanu  ntal 
Legal  Conceptions  he  demonstrated  its  utility  by  many  examples 
from  the  law  of  contracts,  torts,  agency,  property,  etc..  showing  how 
the  courts  are  constantly  contVonted  by  the  necessity  of  distinguish- 
ing between  the  eight  concepts  and  are  all  too  often  confused  by  the 
lack  of  clear  concepts  and  precise  terminology.  On  the  other  hand, 
so  clear  a  thinker  as  Salmond  has  shown  himself  to  be  in  his  Juris- 
prudence fails  to  make  any  substantial  use  of  the  analysis  in  his  book 
on  Torts.  Indeed,  so  far  as  the  present  writer  has  been  able  to  dis- 
cover, one  might  read  his  Torts  through  and  never  realize  that  any 
such  analysis  as  that  found  in  the  Jurisprud<  ncc  had  ever  been  made. 
Yet  the  problems  involved  in  such  subjects  as  easements,  privilege 
in  defamation,  and  other  portions  of  the  law  of  torts  too  numerous  to 
mention,  re(iuire  for  their  accurate  solution  careful  discrimination 
between  these  diflPerent  concepts. 

Even  in  the  work  on  Jurisprudcncr  itself  Salmond  completely  fails 
in  certain  chapters  to  show  an  appreciation  of  the  meaning  of  these 
fundamental  conceptions.  Consider,  for  example,  the  following  pas- 
sage from  the  chapter  on  ' '  Ownership ' ' : 


12  FUNDAMENTAL  LEGAL  CONCEPTIONS 

**  Ownership,  in  its  most  comprehensive  signification,  denotes  the 
relation  between  a  person  and  any  right  that  is  vested  in  him.  That 
which  a  man  oivns  is  in  all  cases  a  right.  When,  as  is  often  the  case, 
we  speak  of  the  o\\Tiership  of  a  material  object,  this  is  merely  a  con- 
venient figure  of  speech.  To  own  a  piece  of  land  means  in  truth  to 
oivn  a  particular  kind  of  right  in  the  land,  namely  the  fee  simple 
ofit."^* 

From  the  point  of  view  of  one  who  understands  the  meaning  of  the 
eight  fundamental  legal  concepts,  it  would  be  difficult  to  pen  a  more 
erroneous  passage.  To  say  that  A  owns  a  piece  of  land  is  really 
to  assert  that  he  is  vested  by  the  law  with  a  complex — exceedingly 
complex,  be  it  noted — aggregate  of  legal  rights,  privileges,  powers 
and  immunities — all  relating  of  course  to  the  land  in  question.  He 
does  not  own  the  rights,  etc.,  he  has  them;^*^  because  he  has  them, 
he  "owns"  in  very  truth  the  material  object  concerned;  there  is  no 
"convenient  figure  of  speech"  about  it.  To  say  that  A  has  the  "fee 
simple"  of  a  piece  of  land  is,  therefore,  to  say  not  that  he  "owns  a 
particular  kind  of  right  in  the  land"  but  simply  that  he  has  a  very 
complex  aggregate  of  rights,  privileges,  powers  and  immunities,  avail- 
ing against  a  large  and  indefinite  number  of  people,  all  of  which 
rights,  etc.,  naturally  have  to  do  with  the  land  in  question. 

The  full  significance  and  great  practical  utility  of  this  conception 
of  ' '  ownership ' '  would  require  a  volume  for  its  demonstration.  When 
one  has  fully  grasped  it  he  begins  to  realize  how  superficial  has  been 
the  conventional  treatment  of  many  legal  problems  and  to  see  how 
little  many  commonly  accepted  arguments  prove.  He  discovers,  for 
example,  that  ^'a  right  of  way"  is  a  complex  aggregate  of  rights, 
privileges,  powers  and  immunities ;  is  able  to  point  out  precisely  which 
one  of  these  is  involved  in  the  case  before  him,  and  so  to  demonstrate 
that  decisions  supposed  to  be  in  point  really  dealt  with  one  of  the 
other  kinds  of  "rights"  (in  the  generic  sense)  and  so  are  not  appli- 
cable to  the  case  under  discussion.  He  soon  comes  to  look  upon  this 
newer  analysis  as  an  extraordinary  aid  to  clearness  of  thought,  as  a 
tool  as  valuable  to  a  lawyer  as  up-to-date  instruments  are  to  a  surgeon. 

In  the  second  of  the  articles  ui)on  Fundamental  Legal  Conceptions 

11  Salmond,  Jurisprudence,  220. 

14a  When  used  with  discrimination,  the  word  own  seems  best  used  to  denote  the 
legal  consequences  attached  by  law  to  certain  operative  facts.  So  used,  it  of 
course  connotes  that  these  facts  are  true  of  the  one  said  to  own  the  article  in 
question.  If  we  confine  ow?)  to  this  meaning,  obviously  we  can  not  say  that  one 
owns  a  right  or  other  legal  relation,  for  the  latter  is  itself  one  of  the  legal 
consequences  denoted  by  the  word  oivn.  On  the  other  hand,  we  commonly  do  say 
that  one  has  a  right,  a  power,  etc.,  and  this  usage  does  not  seem  undesirable  or 
likely  to  lead  to  any  confusion,  even  though  we  also  say  one  has  a  physical  object. 


INTRODUCTION  13 

Hohfeld  outlined  in  l)rief  the  remainder  of  the  work  as  lie  planned  it, 
as  follows: 

"In  the  following  pages  it  irs  proposed  to  begin  thf  discussion  of 
certain  iinj)ortant  classifications  which  are  applicable  to  each  of  the 
eight  individual  jural  conceptions  repn-sented  in  the  above  scheme. 
Some  of  such  overspreading  classitications  consist  of  the  following: 
relations  in  pirson(n)i  ('paucital'  relations),  and  relations  in  rim 
('multital'  relations)  ;  common  (or  general)  relations  and  special  (or 
particular)  relations;  consensual  relations  and  constructive  relations; 
primary  relations  and  secondary  relations;  substantive  relations  and 
adjective  relations;  perfect  relations  and  imperfect  relations;  con- 
current relations  (i.e.,  relations  concurrently  legal  and  efiuitable)  and 
exclusive  relations  (i.e.,  relations  exclusively  efpiitable).  As  the  bulk 
of  our  statute  and  case  law  becomes  greater  and  greater,  these  cla.ssi- 
fications  are  constantly  increasing  in  their  practical^  importance :  not 
only  because  of  their  intrinsic  value  as  mental  tools  for  the  compre- 
hending and  systematizing  of  our  complex  legal  materials,  but  also 
because  of  the  fact  that  the  opposing  ideas  and  terms  involved  are 
at  the  present  time,  more  than  ever  before,  constituting  part  of  the 
normal  foundation  of  judicial  reasoning  and  decision."*"' 

Of  this  comprehensive  programme,  only  two  parts  were  even  par- 
tially finished  at  the  time  of  Hohfeld 's  untimely  death,  viz.,  that 
devoted  to  a  discussion  of  the  classification  of  legal  relations  as  in 
rem  (''multitar")  and  in  personam  ("paucital")  and  that  dealing 
with  the  division  of  legal  relations  into  those  which  are  "concurrent" 
and  those  which  are  "exclusive." 

The  division  of  "rights"  into  rights  in  rem  and  rights  in  personam 
is  a  common  one  and  is  frequently  thought  to  be  of  great  importance. 
It  is.  however,  a  matter  upon  which  there  is  still  much  confusion  even 
on  the  part  of  those  who  are  as  a  rule  somewhat  careful  in  their 
choice  of  terms.  As  the  present  writer  has  elsewhere  pointed  out, 
as  able  a  thinker  as  the  late  Dean  Ames  at  times  used  the  phrase 
"right  in  rem"  in  a  sense  different  from  that  given  to  it  in  the  usual 
definitions,  apparently  without  being  conscious  of  the  fact  that  he 
was  doing  so.**'  In  the  second  of  the  articles  upon  Funelamental 
Legal  Conceptions,  Hohfeld  sought  by  careful  discussion  and  analysis 
to  dispel  the  existing  confusion.  In  doing  so  he  necessarily  went  over 
much  ground  that  is  not  new.  The  greatest  merit  of  his  discussion 
seems  to  the  present  writer  to  consist  in  bringing  out  clearly  the  fact 
that  legal  relations  in  rem  ("multital"  legal  relations)  differ  from 
those  in  personam  ("paucital")  merely  in  the  fact  that  in  the  case 
of  the  former  there  exists  an  indefinite  number  of  legal  relations,  all 

15  (1917)  2fi  Yale  Law  .Journal.  712;  p.  67,  infra. 
i«  (1915)   15  Columbia  Law  Review,  43. 


34  FUNDAMENTAL  LEGAL  CONCEPTIONS 

similar,  whereas  in  the  case  of  the  latter  the  number  of  similar  rela- 
tions is  always  definitely  limited.  For  this  reason  he  suggested  the 
name  "multital"  for  those  which  are  in  rem  and  "paucital"  for  those 
in  personam.  These  new  terms  have,  to  be  sure,  other  things  to 
commend  them:  (1)  they  are  free  from  all  suggestion  that  legal 
relations  in  rem  relate  necessarily  to  a  physical  res  or  thing  or  are 
"rights  against  a  thing"  ;^'  (2)  they  do  not  lead  to  the  usual  confusion 
with  reference  to  the  relation  of  rights  in  rem  and  in  personam,  to 
actions  and  procedure  in  rem  and  in  personam}^ 

Even  a  slight  consideration  of  the  application  of  this  portion  of 
Holif eld's  analysis  to  "ownership"  of  property  will  show  the  extent 
of  his  contribution  at  this  point.  It  is  frequently  said  that  an  owner 
of  property  has  "a  right  in  rem"  as  distinguished  from  "a  mere  right 
in  personam."  As  has  already  been  pointed  out  above,  what  the  o\\'ner 
of  property  has  is  a  very  complex  aggregate  of  rights,  privileges, 
powers  and  immunities.  These  legal  relations  prove  on  examination 
to  be  chiefly  in  rem,  i.e.,  "multital."  Looking  first  at  the  owner's 
rights  in  the  strict  sense — these  clearly  include  a  large  number  that 
are  in  rem.  Note  the  plural  form — "rights."  As  Hohfeld  very 
properly  insisted,  instead  of  having  a  single  right  in  rem,  the  "owner" 
of  property  has  an  indefinite  number  of  such  rights — as  many,  that  is, 
as  there  are  persons  under  correlative  duties  to  him.  A  single  right 
is  always  a  legal  relation  between  a  person  who  has  the  right  and  some 
one  other  person  who  is  under  the  correlative  duty.^^  Each  single 
right  ought  therefore  to  be  called  "a  right  in  rem,"  or  a  "multital" 
right.  The  "ownership"  includes  the  whole  group  of  rights  in  rem 
or  ' '  multital ' '  rights,  as  well  as  other  groups  of  ' '  multital ' '  privileges, 
"multital"  powers,  and  "multital"  immunities.^** 

Familiarity  with  an  adequate  analysis  of  this  kind  reveals  the  hope- 
less inadequacy  of  a  question  which  has  frequently  been  asked  and 
to  which  varying  answers  have  been  given,  viz.,  whether  a  cestui 
que  trust  has  "a  right  in  rem"  or  "a  right  in  personam. "^^     The 

17  "  A  cestui  que  trust  has  an  equitable  right  in  rem  against  the  land  and  not 
merely  a  right  in  personam  against  the  holder  of  the  legal  title."  Professor 
Zechariah  Chafee,  Jr.,  in  (1918)  31  Harvard  Law  Eeview,  1104. 

18  See  the  present  writer's  discussion  of  this  point  in  (1915)  15  Columbia  Law 
Eeview,  37-54. 

19  In  (1917)  26  Yale  Law  Journal,  710,  742,  Hohfeld  seems  to  recognize  that 
there  may  be  a  single  ' '  joint  right "  or  "  joint  duty. ' '  See  p.  72,  n.  17,  and  p.  93, 
infra.  It  is  believed  that  as  a  matter  of  substantive  law  this  concept  can  not  be 
justified,  although  it  is  entirely  correct  so  far  as  procedural  law  is  concerned. 

20  Illustrations  will  be  found  in  the  article  under  discussion. 

21  "Is  it  [trust]  jus  in  rem  or  jus  in  personam.^"    Walter  G.  Hart  in  (1912)  28 


IXTRODICTIOX  15 

so-called  "eciuitable  title"  of  the  cestui  proves  upon  analysis  to  con- 
sist of  an  exceedingly  complex  aggregate  of  legal  relations — rights, 
privileges,  powers  and  immunities.  These  in  turn  upon  examination 
are  found  to  include  groups  of  rights  in  rem  or  "multital"  rights — 
differing  perhaps  in  .some  details  from  common-law  rights  in  rem 
but  nevertheless  true  rights  in  rrm  according  to  any  accurate  analysis. 
So  of  the  privileges,  the  powers,  the  immunities,  of  the  ''efjuitable 
owner "  * — groups  of  ' '  multital ' '  relations  are  found."  In  other  words, 
the  usual  analysis  to  which  we  have  been  accustomed  has  treated  a 
very  complex  aggregate  of  legal  relations  as  though  it  wen*  a  simple 
thing,  a  unit.  The  result  is  no  more  enlightening  than  would  it  be 
were  a  chemist  to  treat  an  extraoi-dinarily  complex  chemical  compound 
as  if  it  Avere  an  element. 

This  reference  to  the  true  nature  of  the  legal  relations  vested  in  a 
cestui  que  trust  leads  to  a  consideration  of  the  only  other  portion  of 
Hohf eld's  contemplated  treatise  which  was  in  any  sense  completed, 
viz.,  his  classification  of  legal  relations  as  "concurrent"  and  "exclu- 
sive." This  is  found  in  the  [Michigan  Law  Review  article  entitled 
The  Relations  between  Equity  and  Law.  This  essay  was  written  after 
a  generation  of  law  students  in  this  country  had  been  trained  under 
the  influence  of  what  might  perhaps  be  called  the  "Langdell-Ames- 
Maitland"  school  of  thought  as  to  the  relation  of  equity  to  common 
law.  Perhaps  the  plainest  statement  of  the  point  of  view  of  this 
school  is  found  in  the  following  quotation  from  Maitland : 

"Then  as  to  substantive  law  the  Judicature  Act  of  1873  took  occa- 
sion to  make  certain  changes.  In  its  twenty-fifth  section  it  laid  down 
certain  rules  about  the  administration  of  insolvent  estates,  about  the 
application  of  statutes  of  limitation,  al)Out  waste,  about  merger,  about 
mortgages,  about  the  assignment  of  choses  in  action,  and  so  forth,  and 
it  ended  with  these  words : 

"  'Generally  in  all  matters  not  hereinbefore  particularly  mentioned, 
in  which  there  is  any  conflict  or  variance  between  the  rules  of  e(|uity 
and  the  rules  of  the  common  law  with  reference  to  the  same  matter, 
the  rules  of  equity  shall  prevail. ' 

"Now  it  may  well  seem  to  you  that  those  are  very  important  words, 
for  perhaps  you  may  have  fancied  that  at  all  manner  of  points  there 
was  a  conflict  between  the  rules  of  equity  and  the  rules  of  the  com- 
mon law,  or  at  all  events  a  variance.    But  the  clause  that  I  have  just 

Law  Quarterly  Review,  290.  Cf.  also  the  discussion  of  The  Nature  of  the  Bights  of 
the  Cestui  Que  Trust,  by  Professor  Scott  in  (1917)  17  Columbia  Law  Review,  269, 
and  that  on  the  same  subject  by  Dean  Stone  in  (1917)  17  Hid.,  467. 

22  There  are  also  "paucital"  relations  of  various  kinds.  In  other  words,  an 
"equitable  interest"  is  an  extremely  complex  aggregate  of  multital  and  paucital 
rights,  privileges,  powers  and  immunities. 


16  FUNDAMENTAL  LEGAL  CONCEPTIONS 

read  has  been  in  force  now  for  over  thirty  years,  and  if  you  will  look 
at  any  good  commentary  upon  it  you  will  find  that  it  has  done  very 
little — it  has  been  practically  without  effect.  You  may  indeed  find 
many  cases  in  which  some  advocate,  at  a  loss  for  other  arguments, 
has  appealed  to  the  words  of  this  clause  as  a  last  hope;  but  you  will 
find  very  few  cases  indeed  in  which  that  appeal  has  been  successful. 
I  shall  speak  of  this  more  at  large  at  another  time,  but  it  is  important 
that  even  at  the  very  outset  of  our  career  we  should  form  some  notion 
of  the  relation  which  existed  between  law  and  equity  in  the  year  1875, 
And  the  first  thing  that  we  have  to  observe  is  that  this  relation  was 
not  one  of  conflict.  Equity  had  come  not  to  destroy  the  law,  but  to 
fulfil  it.  Every  jot  and  every  tittle  of  the  law  was  to  be  obeyed,  but 
when  all  this  had  been  done  something  might  yet  be  needful,  some- 
thing that  equity  would  require.  Of  course  now  and  again  there  had 
been  conflicts :  there  was  an  open  conflict,  for  example,  when  Coke 
was  for  indicting  a  man  who  sued  for  an  injunction.  But  such  con- 
flicts as  this  belong  to  old  days,  and  for  two  centuries  before  the  year 
1875  the  two  systems  had  been  working  together  harmoniously. 

"Let  me  take  an  instance  or  two  in  which  something  that  may  for  a 
moment  look  like  a  conflict  becomes  no  conflict  at  all  when  it  is  exam- 
ined. Take  the  case  of  a  trust.  An  examiner  will  sometimes  be 
told  that  whereas  the  common  law  said  that  the  trustee  was  the  owner 
of  the  land,  equity  said  that  the  cestui  que  trust  was  the  owner.  Well 
here  in  all  conscience  there  seems  to  be  conflict  enough.  Think  what 
this  would  mean  were  it  really  true.  There  are  two  courts  of  co- 
ordinate jurisdiction — one  says  that  A  is  the  owner,  the  other  says 
that  B  is  the  owner  of  Blackacre.  That  means  civil  war  and  utter 
anarchy.  Of  course  the  statement  is  an  extremely  crude  one,  it  is  a 
misleading  and  a  dangerous  statement — how  misleading,  how  dan- 
gerous, we  shall  see  when  we  come  to  examine  the  nature  of  equitable 
estates.  Equity  did  not  say  that  the  cestui  que  trust  was  the  owner  of 
the  land,  it  said  that  the  trustee  was  the  owner  of  the  land,  but  added 
that  he  was  bound  to  hold  the  land  for  the  benefit  of  the  cestui  que 
trust.  There  was  no  conflict  here.  Had  there  been  a  conflict  here 
the  clause  of  the  Judicature  Act  which  I  have  lately  read  would  have 
abolished  the  whole  law  of  trusts.  Common  laAv  says  that  A  is  the 
owner,  equity  says  that  B  is  the  owner,  but  equity  is  to  prevail,  there- 
fore B  is  the  owner  and  A  has  no  right  or  duty  of  any  sort  or  kind 
in  or  about  the  land.  Of  course  the  Judicature  Act  has  not  acted  in 
this  way;  it  has  left  the  law  of  trusts  just  where  it  stood,  because  it 
found  no  conflict,  no  variance  even,  between  the  rules  of  the  common 
law  and  the  rules  of  equity. '  '-^ 

To  Hohf eld's  logical  and  analytical  mind  this  was  not;  only  not  a 
truthful  description  but  about  as  complete  a  misdescription  of  the 
true  relations  of  equity  and  common  law  as  could  be  devised.  He 
believed,  moreover,  that  it  was  heresy  in  the  sense  that  it  departed 
from  the  traditional  view  as  found  in  classic  writers  upon  equity, 

23  Maitland,  Equity,  16-18. 


INTKODrCTloX  17 

such  as  Spence  and  others,  and  emhodicd  in  Uiu  English  Judicature 
Act  in  the  well-known  clause  which  is  criticized  by  Maitland  in  the 
passage  quoted.  As  the  latter  himself  seems  to  recognize  in  other 
passages  in  his  writings,-^  e(|uity  came,  not  to  "fulfill  every  jot  and 
tittle"  of  the  common  law,  ])ut  to  reform  those  portions  of  it  which 
to  the  chancellor  seemed  unjust  and  out  of  date.  Just  how  law  can 
at  the  same  time  be  fulfilled  and  yet  reformed  is  certainly  difficult 
to  see. 

A  demonstration  of  the  "conflict"  between  equity  and  law,  i.e., 
of  the  fact  that  in  many  respects  ecjuity  is  a  system  of  law  paramount 
to  and  repealing  pro  tanto  the  common-law  rules  upon  the  same  point, 
can  be  made  fully  clear  only  by  one  and  to  one  who  first  of  all  inidcr- 
stands  the  eight  fundamental  legal  conceptions.  Such  a  one  need  not 
use  the  precise  terminology  adopted  by  Hohfeld,  but  the  concepts 
themselves  he  must  clearly  have  in  mind.  What  Hohfeld  here  did, 
therefore,  was  to  take  the  orthodox  and  sound  theory  of  ecjuity  as  a 
system  which  had  effectually  repealed  pro  tanto  large  portions  of  the 
common  law  and  conclusively  to  demonstrate  its  truth  by  more 
scientific  analysis. 

Rights  in  the  general  sense  (legal  relations  in  general)  are  commonly 
divided  into  those  which  are  "legal"  and  those  Avhich  are  "equitable," 
the  usual  meaning  given  to  these  terms  being  that  the  former  are 
recognized  and  sanctioned  by  courts  of  common  law  and  the  latter 
by  courts  of  equity.  If  we  examine  these  so-called  "legal"  rights, 
etc.,  more  carefully  than  is  usually  done,  we  find  that  they  clearly  fall 
into  two  classes,  viz.,  (1)  those  which  a  court  of  equity  will  in  one  way 
or  another  render  of  no  avail;  (2)  those  with  the  assertion  of  which 
a  court  of  equity  will  not  interfere.  Compare,  for  example,  the 
so-called  "legal  (common-law)  title"  of  a  constructive  trustee  with 
the  "legal  title"  of  an  owner  who  is  free  from  any  trust.  Clearly 
the  "legal  ownership"  of  the  former  is  largely  illusory,  while  that 
of  the  latter  is  quite  the  opposite.  The  truth  of  the  situation  appears 
when,  calling  to  our  aid  the  eight  fundamental  conceptions,  we  exam- 
ine the  situation  in  detail.  We  then  discover,  for  example,  that  while 
the  common-law  court  recognizes  that  the  constructive  trustee  is  privi- 
leged to  do  certain  things — e.g.,  destroy  the  property  in  (|uestion, 
or  sell  it,  etc. — in  equity  he  is  under  a  duty  not  to  do  so.  In  other 
words,  there  is  an  "exclusively  e<|uitabk'"  diify  which  conflicts  with 
and  so  nullifles  each  one  of  the  "Icj^'al"  (coimiion-law)  jirivileges  of 
the  constructive  trustee.-'' 

-*  Especially  in  his  essay  upon  The  Vniucorporalc  Bod;i,  3  Collected  Papers,  271, 
25  And  so  of  the  major  portion  of  the  other  legal  relations  supposed  to  be  vested 


18  FUNDAMENTAL  LEGAL  CONCEPTIONS 

Careful  consideration  leads,  therefore,  to  the  conclusion  that  an 
"exclusively  common-law"  relation,  i.e.,  one  which  only  the  courts 
of  common  law  \nll  recognize  as  valid,  is  as  a  matter  of  genuine 
substantive  law  a  legal  nullity,  for  there  will  always  be  found  some 
other  "exclusively  equitable"  relation  which  prevents  its  enforce- 
ment. Thus,  to  take  another  concrete  example,  a  tenant  for  life 
without  impeachment  of  waste  has  a  common-law  privilege  to  denude 
the  estate  of  ornamental  and  shade  trees,  but  in  equity  is  under  a  diity 
not  to  do  so.  As  privilege  and  duty  are  "jural  opposites,"  the 
"equity  law"  turns  out  to  be  exactly  contrary  to  the  "common-law 
law."  As  equity  has  the  last  word,  it  follows  that  the  "common-law 
privilege"  is  purely  illusory  as  a  matter  of  genuine  substantive  law.-^ 
The  reader  who  wishes  to  pursue  the  analysis  through  a  large  number 
of  concrete  examples  will  find  ample  material  in  the  essay  under 
discussion.    Limitations  of  space  forbid  more  detailed  treatment  here. 

All  genuine  substantive-law  relations  therefore  fall  into  two  classes  : 
(1)  those  recognized  as  valid  by  both  courts  of  common  law  and 
courts  of  equity;  (2)  those  recognized  as  valid  exclusively  by  equity. 
The  former  we  may  call  "concurrent,"  the  latter,  "exclusive."  The 
word  "concurrent"  is  perhaps  open  to  criticism.  When  Hohfeld 
called  a  legal  relation  "concurrent"  he  did  not  mean  to  assert  that 
it  will  as  such  necessarily  receive  direct  "enforcement"  in  equity  as 
well  as  at  law.  Equity  may  "concur"  in  recognizing  the  validity  of  a 
given  relation  either  actively  or  passively — actively,  by  giving  equi- 
table remedies  to  vindicate  it ;  passively,  by  refusing  to  prevent  its 
enforcement  in  a  court  of  common  law.  Consider,  for  example,  the 
right  of  an  owner  and  possessor  of  land  that  others  shall  not  trespass 
upon  it.  So  long  as  the  common-law  action  for  damages  is  adequate, 
equity  gives  no  direct  aid;  but,  on  the  other  hand,  equity  does  not 
prevent  the  recovery  of  damages  at  law  for  the  trespass.  Just  as 
soon  as  damages  are  inadequate,  however,  equitable  remedies  may  be 
invoked.  A  right  of  this  kind  may  fairly  be  called  ' '  concurrent ' '  and 
not  merely  "legal"  (common-law). 

The   matter  may  perhaps  be  put  shortly   as   follows :   what   are 

in  the  ' '  constructive  trustee. ' '  Some  of  the  relations  are,  however,  ' '  concurrent, ' ' 
for  example,  the  power  to  convey  a  ' '  title ' '  free  from  the  trust  to  a  bona  fide 
purchaser  for  value. 

26  But  not  as  a  matter  of  procedural  law.  The  ' '  common-law  courts ' '  will  treat 
the  "exclusively  common-law"  legal  relations  as  though  they  were  valid.  In  a 
code  state  this  means  at  most  that  the  facts  giving  rise  to  the  paramount  ' '  exclu- 
sive, ' '  i.e.,  exclusively  equitable,  relations  must  be  pleaded  affirmatively  as 
"equitable  counterclaims"  and  not  as  mere  "defences." 


INTRODUCTION  19 

commonly  called  "legal"  or  common-law  rights  (and  other  legal 
relations)  really  consist  of  two  classes:  (1)  those  which  are  in  con- 
flict with  paramount  exclusively  e<iuital)le  relations,  and  so  are  really 
illusory;  (2)  those  which  do  not  so  conflict  and  arc  therefore  valid. 
The  latter  are  "concurrent." 

Legal  relations  which  are  recognized  as  valid  by  e(|uity  but  not 
by  common  law  are  connnon  enough  in  our  system  and  are,  of  course, 
valid.  They  may  properly  be  called  "exclusive,"  i.e.,  exclusively 
ecjuitable.  It  may  here  be  noted  that  it  has  happened  over  and  over 
again  that  given  legal  relations  were  at  first  "exclusive"'  but  that 
after  a  time,  because  of  changes  in  the  common  law,  they  became 
"concurrent."  This,  for  example,  is  true  of  the  rights,  etc.,  of  the 
assignee  of  an  ordinary  common-law  chose  in  action.-'  While 
originally  the  assignee's  interest  was  "exclusive,"  he  ac<|uires  to-day 
not  the  "legal  title"  to  the  chose  in  action,  but  an  aggregate  of  legal 
relations  which  are  "concurrent,"  just  as  were  those  of  the  assignor 
before  the  assignment.-^ 

Be  it  noted  that  this  classification  of  really  valid  legal  relations  into 
those  which  are  "concurrent"  and  those  which  are  "exclusive," 
applies  e(|ually  to  all  the  fundamental  relations — rights,  privileges, 
powers  and  immunities  and  their  correlatives.  To  take  a  simple  con- 
crete example :  At  one  period  of  our  legal  development  the  assignor 
of  a  chose  in  action  seems  to  have  had  an  "exclusively  common-law" 
(and  therefore,  as  a  matter  of  substantive  law,  invalid)  power  to 
release  the  debtor,  even  after  notice  from  the  assignee.  In  equity, 
however,  at  the  same  period,  such  a  release  was  not  recognized  as 
valid,  i.e.,  the  assignee  had,  after  notice  to  the  debtor  of  the  assign- 
ment, an  "exclusive"  (exclusively  e(|uitable)  iinmiinifif  from  having 
the  legal  relations  which  the  assignment  vested  in  him  divested  by 
acts  of  the  assignor.  The  assignor  was  at  the  same  time  under  an 
"exclusive"  duty  not  to  execute  such  a  "release."  although  he  had 
an  "exclusively  common-law"  (but  really  invalid "i  privilrgc  to  do 
so.  At  a  later  period  these  relations  became  "concurrent";  for 
example,  the  "exclusive"  immunity  became  "concurrent,"  so  that 

2"  See  the  present  writer's  disenssion  of  The  AlienahUitu  of  Choses  in  Aciion 
in  (1916)  29  Harvard  Law  Eeview.  S16,  and  (1917)  ."iO  Harvard  Law  Review.  419, 
in  which  the  history  of  the  assignee's  "rights"  is  set  forth. 

28  In  his  criticisms  of  my  discussion  of  the  "rights''  of  an  assignee  of  a  chose 
in  aciion,  Professor  Williston — partly,  it  is  believed,  because  of  .a  failure  to 
appreciate  fully  the  significance  of  the  concept  of  "concurrent"  legal  relations — 
has  misapprehended  and  so  unconsciously  misstated  my  position.  This  is  true 
even  in  his  final  article.  Ilis  discussions  will  be  found  in  (1916)  30  Harvard  Law 
Review,  97,  and  (1918)  31  Harvard  Law  Review,  822. 


20  FUNDAMENTAL  LEGAL  CONCEPTIONS 

a  release  by  the  assignor  after  notice  to  the  debtor  of  the  assignment 
was  inoperative  both  at  law  and  in  ecjuity.-" 

The  present  writer  has  been  teaching  equity  to  law  students  for 
some  eighteen  years.  During  the  past  few  years  he  has  made  greater 
and  greater  use  of  Plohfeld's  analysis  of  the  relations  of  law  and 
equity,  as  well  as  of  the  more  fundamental  legal  conceptions,  and  has 
found  it  of  the  greatest  utility  in  classroom  discussion  and  state- 
ment of  the  actual  system  of  law  under  which  we  live.  The  terms 
"concurrent"  and  "exclusive"  may  possibly  be  open  to  criticism. 
It  may,  for  example,  be  thought  that  "concurrent"  savors  too  much 
of  activity  and  does  not  sufficiently  suggest  passive  concurrence  in 
the  validity  of  a  given  relation.  Thus  far,  however,  no  better  terms 
have  suggested  themselves,  or  have  been  suggested  by  others,  and  as 
it  isdifficult  to  use  concepts  without  names,  those  suggested  by  Hohfeld 
have  been  used  with  success.  The  important  thing,  after  all,  is  to 
enable  the  student  and  the  lawyer  to  formulate  general  statements 
which  enable  us  to  give  an  accurate  picture  of  our  legal  system  and  to 
discuss"  our  legal  problems  intelligently.  In  the  doing  of  these  things 
the  conceptions  denoted  respectively  by  the  terms  "concurrent"  and 
"exclusive"  seem  to  the  present  writer  an  indispensable  aid. 

In  the  space  i.t  hand  it  is  not  possible  even  to  summarize  the  con- 
tents of  the  other  essays  enumerated  in  the  list  of  Hohfeld 's  writings. 
Of  those  which  have  not  been  discussed,  the  most  important  are  the 
articles  upon  the  Individual  Liability  of  Stockholders  in  the  ninth 
and  tenth  volumes  of  the  Columbia  Law  Review.  In  the  first  of 
these  will  be  found  first  of  all  an  intelligible,  theory  of  what  a  cor- 
poration really  is — intelligible,  that  is,  to  those  readers  who  vnll  take 
the  trouble  to  think  the  matter  through  with  Hohfeld  in  the  terms 
of  the  fundamental  legal  conceptions  which  he  uses,  hut  absolutely 
unintelligible  to  those  who  will  not.  The  current  theory  of  a  corpora- 
tion as  a  "juristic  person"  disappears  under  the  relentless  logic  of 
Hohfeld 's  analysis,  and  we  see  how  the  recognition  of  the  fact  that 
the  only  "persons"  are  human  beings  does  not  prevent  us  from  ade- 
quately describing  all  the  legal  phenomena  which  accompany  so-called 
"corporate  existence."  In  the  second  of  the  two  essays  in  question 
will  be  found  a  valuable  contribution  to  the  theory  of  the  conflict  of 
laws — a  field  in  which  Hohfeld  had  planned  and  hoped  to  write 
extensively.  Undoubtedly,  too,  his  studies  in  the  conflict  of  laws  led 
him  to  see  more  clearly  than  ever  the  necessity  for  a  careful  analysis 
of  fundamental  conceptions,  and  the  confusion  which  exists  in  that 
field,  especially  as  to  the  nature  of  law  and  its  territorial  operation, 

29  For  citation  of  cases,  see  the  articles  cited  in  note  27,  supra. 


INTRODUCTION  21 

furnished  him  with  an  aijuudanee  of  material  whic-li  stimuhited  a 
naturally  keen  interest  along  analytical  lines. 

The  address  upon  a  Vital  ScJiool  of  Jiirispni(hnrr  and  Law,  deliv- 
ered before  the  Association  of  American  Law  Schools  in  1914,  was 
a  summons  to  the  law  schools  of  the  country  to  awake  and  do  their 
full  duty  in  the  way  of  training  men,  not  merely  for  the  business  of 
earning  a  living  by  "practicing  law,"  but  also  for  the  larger  duties 
of  the  profession,  so  that  they  may  play  their  part  as  judges,  as  legis- 
lators, as  members  of  administrative  commissions,  and  finally  as  citi- 
zens, in  so  shaping  and  adjusting  our  law  that  it  will  be  a  living,  vital 
thing,  growing  with  society  and  adjusting  itself  to  the  mores  of 
the  times.  The  programme  thus  outlined  he  lived  to  see  adopted 
substantially  as  that  of  the  school  with  which  he  was  connected  but, 
alas !  he  was  not  spared  to  see  it  carried  out  in  any  large  measure. 
That  it  may  become  the  ideal  of  every  university  law  school  worthy  of 
the  name,  is  devoutly  to  lie  wished.  Granted  that  it  is  an  ideal — a 
"counsel  of  perfection."  as  the  dean  of  one  large  law  school  was 
heard  to  remark  upon  the  occasion  of  its  delivery — is  that  a  reason 
why  we  of  the  law  schools  should  not  come  as  near  to  reaching  it  as 
we  can?  If  to-day  it  is  still  a  substance  of  things  hoped  for  rather 
than  of  things  attained,  shall  we  not  labor  the  harder,  that  in  tlic  days 
to  come  achievement  may  not  fall  so  far  short  of  aspiration  ? 

"Ilohfeld  is  an  idealist."  "a  theorist" — these  and  similar  remarks 
the  present  writer  has  heard  all  too  often  from  the  lips  of  supposedly 
"practical"  men.  Granted:  but  after  all  ideals  are  what  move  the 
world;  and  no  one  recognized  more  clearly  than  did  Ilohft'ld  that 
"theory"  which  will  not  work  in  practice  is  not  sound  theory.  "It  is 
theoretically  correct  but  will  not  work  in  practice"  is  a  common  but 
erroneous  statement.  If  a  theory  is  "theoretically  correct"  it  will 
work;  if  it  will  not  work,  it  is  "theoretically  incorrect."  Upon  these 
propositions  Ilohfeld 's  work  was  based :  by  these  he  would  have  it 
tested.  "Theory,"  to  which  he  devoted  his  life,  was  to  him  a  means 
to  an  end — the  solution  of  legal  problems  and  the  development  of  our 
law  so  as  to  meet  the  hunuin  needs  which  art^  the  .sole  reasons  for  its 
existence.  In  the  opinion  of  the  present  wi-iter.  no  more  "practical" 
legal  work  was  ever  done  than  that  wliit-h  is  found  in  the  pages  of 
ITolifeld's  writings,  and  it  is  as  such  that  the  attempt  has  here  been 
nuide  to  outline  the  more  fundamental  portions  of  it.  in  the  hope  that 
it  may  thus  be  brought  to  the  attention  of  a  wider  eirdc  of  readers. 

W.vLTF.u  AViir.ixKR  Cook. 


22  FUNDAMENTAL  LEGAL  CONCEPTIONS 

Concrete  illustrations  of  the  utility  of  the  method  of  legal  analysis 
set  forth  in  Hohfeld's  essays  on  Fundamental  Legal  Conceptions  will 
be  found  in  the  essays,  reprinted  below,  entitled:  Faulty  Analysis  in 
Easement  and  License  Cases;  The  Nature  of  StockJiolders'  Individual 
Liability  for  Corporation  Dehts;  The  Individual  Liability  of  Stock- 
holders and  the  Conflict  of  Laws.  Other  practical  applications  of  the 
method  are  to  be  found  in  the  following  discussions  by  other  writers : 

The  Declaratory  Judgment,  by  E.  M.  Borchard,  (1918)  28  Yale  Law 

Journal,  1,  105. 
The  Alienability  of  Choses  in  Action,  by  Walter  Wheeler  Cook,  (1916) 

29   Harvard  Law  Review,   816,   and    (1917)    30   Harvard   Law 

Review,  450. 
The  Privileges  of  Labor  Unions  in  the  Struggle  for  Life,  by  Walter 

Wheeler  Cook,  (1918)  27  Yale  Law  Journal,  779. 
Offer  and  Acceptance,  and.  Some  of  the  Resulting  Legal  Relations,  by 

Arthur  L.  Corbin,  (1917)  28  Yale  Law  Journal,  169  (also  in  the 

editorial  work  of  the  same  author  in  the  third  American  edition 

of  Anson  on  Contracts). 
Conditions  in  the  Law  of  Contracts,  by  Arthur  L.  Corbin,  (1919)  28 

Yale  Law  Journal,  739. 

The  analysis  is  also  used  in  a  large  number  of  comments  upon  recent 
cases  in  volumes  26,  27  and  28  of  the  Yale  Law  Journal. 


SOME  FUXDAMEXTAL  LEGAL  CONCEPTIOXS 
AS  APPLIED  IX  JUDICIAL  REASOXIXG* 


From  very  early  days  down  to  the  present  time  the  essential  nature 
of  trusts  and  other  equita))le  interests  has  formed  a  favorite  subject 
for  analysis  and  disputation.  The  classical  discussions  of  Bacon^  and 
Coke  are  familiar  to  all  students  of  equity,  and  the  famous  definition 
of  the  great  chief  justice  (however  inadequate  it  may  really  be)  is 
quoted  even  in  the  latest  text-books  on  trusts.-  That  the  subject  has 
had  a  peculiar  fascination  for  modern  legal  thinkers  is  abundantly 
evidenced  by  the  well-known  articles  of  Langdell^  and  Ames,*  by  the 

*  Reprinted  by  permission  from  (1913)  23  Yale  Law  Journal,  16,  with  manu- 
script changes  by  the  author. 

1  Bacon  on  Uses  (circa  1602;  Rowe's  ed.,  1806),  pp.  5-6:  "The  nature  of  an 
use  is  best  discerned  by  considering  what  it  is  not,  and  then  what  it  is.  .  .  .  First, 
an  use  is  no  right,  title,  or  interest  in  law;  and  therefore  master  attorney,  who 
read  upon  this  statute,  said  well,  that  there  are  but  two  rights:  Jns  in  re:  Jus  ad 
rem. 

"The  one  is  an  estate,  which  is  jus  in  re;  the  other  a  demand,  which  is  jus  ad 
rem,  but  an  use  is  neither.  .  .  .  So  as  now  we  are  come  by  negatives  to  the 
affirmative,  what  an  use  is.  .  .  .  Usus  est  dor)iinvum  fduciarium:  Use  is  an  owner- 
ship in  trust. 

"So  tliat  usxis  ^-  status,  sive  possessio,  potius  differunt  secundum  rationem  fori, 
quam  secundum  naturam  rei,  for  that  one  of  them  is  in  court  of  law.  the  other  in 
court  of  conscience.  .'.  ." 

2  Co.  Lit.  (1628)  272  b:  "Nota,  an  use  is  a  trust  or  confidence  reposed  in  some 
other,  which  is  not  issuing  out  of  the  land,  but  as  a  thing  collaterall,  annexed  in 
privitie  to  the  estate  of  the  land,  and  to  the  person  touching  the  land,  scilicet,  that 
cesty  que  use  shall  take  the  profit,  and  that  the  terre-tenant  shall  make  an  estate 
according  to  his  direction.  So  as  cesty  que  use  had  neither  jus  in  re,  nor  jus  ad 
rem,  but  only  a  confidence  and  trust  for  which  he  had  no  remedie  by  the  com- 
mon law,  but  for  the  breach  of  trust,  his  remedie  was  only  by  subpoena  in 
chancerie.   .    .    .  " 

This  definition  is  quoted  and  discussed  approvingly  in  Lewin,  Trusts  (12th  ed., 
1911),  p.  1.  It  is  also  noticed  in  Maitland,  Lectures  on  Equity  (1909),  pp.  43, 
116. 

3  See  Langdell,  Classification  of  Fights  and  Wrongs,  (1900)  13  Harvard  Law 
Review,  659,  673:  "Can  equity  then  create  such  rights  as  it  finds  to  be  necessary 
for  the  purposes  of  .instice?  As  equity  wields  only  physical  power,  it  seems  to  be 
impossible  that  it  should  actually  create  anything.  ...  It  seems,  therefore,  that 


24  FUNDAMENTAL  LEGAL  CONCEPTIONS 

oft-repeated  observations  of  Maitland  in  his  Lectures  on  Equity,^  by 
the  very  divergent  treatment  of  Austin  in  his  Lectures  on  Juris- 
prudence,^ by  the  still  bolder  thesis  of  Salmond  in  his  volume  on 
Jurisprudence,''  and  by  the  discordant  utterances  of  Mr.  Hart®  and 

equitable  rights  exist  only  in  contemplation  of  equity,  i.e.,  that  they  are  a  fiction 
invented  by  equity  for  the  promotion  of  justice.  .  .  . 

"Shutting  our  eyes,  then,  to  the  fact  that  equitable  rights  are  a  fiction,  and 
assuming  them  to  have  an  actual  existence,  Avhat  is  their  nature,  what  their  extent, 
and  what  is  the  field  which  they  occupy?  .  .  .  They  must  not  violate  the  law.  .  ,  . 
Legal  and  equitable  rights  must,  therefore,  exist  side  by  side,  and  the  latter  cannot 
interfere  with,  or  in  any  manner  affect,  the  former. ' ' 

See  also  (1887)  1  Harvard  Law  Review,  55,  60:  "Upon  the  whole,  it  may  be 
said  that  equity  could  not  create  rights  in  rem  if  it  would,  and  that  it  would  not 
if  it  could."  Compare  ibid.,  58;  and  Summary  of  Equity  Plead.  (2d  ed.,  1883), 
sees.  45,  182-184. 

*  See  Ames,  Purchase  for  Value  Without  Notice,  (1887)  1  Harvard  Law 
Eeview,  1,  9:  "The  trustee  is  the  owner  of  the  land,  and,  of  course,  two  persons 
with  adverse  interests  cannot  be  owners  of  the  same  thing.  What  the  cestui  que 
trust  really  oavus  is  the  obligation  of  the  trustee;  for  an  obligation  is  as  truly  the 
subject-matter  of  property  as  any  ph3'sieal  res.  The  most  striking  difference 
between  property  in  a  thing  and  property  in  an  obligation  is  in  the  mode  of 
enjojTiient.  The  owner  of  a  house  or  a  horse  enjoys  the  fruits  of  ownership 
without  the  aid  of  any  other  person.  The  only  way  in  which  the  owner  of  an 
obligation  can  realize  his  ownership  is  by  compelling  its  performance  by  the 
obligor.  Hence,  in  the  one  case,  the  owner  is  said  to  have  a  right  in  rem,  and  in 
the  other,  a  right  in  personam.  In  other  respects  the  common  rules  of  property 
apply  equally  to  oT\Tiership  of  things  and  ownership  of  obligations.  For  example, 
what  may  be  called  the  passive  rights  of  ownership  are  the  same  in  both  cases. 
The  general  duty  resting  on  all  mankind  not  to  destroy  the  property  of  another, 
is  as  cogent  in  favor  of  an  obligee  as  it  is  in  favor  of  the  owner  of  a  horse.  And 
the  violation  of  this  duty  is  as  pure  a  tort  in  the  one  case  as  in  the  other. ' ' 

^Lectures  on  Equity  (1909),  17,  18,  112:  "The  thesis  that  I  have  to  maintain 
is  this,  that  equitable  estates  and  interests  are  not  jxira  in  rem.  For  reasons  that 
we  shall  perceive  by  and  by,  they  have  come  to  look  very  like  jura  in  rem;  but 
just  for  this  very  reason  it  is  the  more  necessary  for  us  to  observe  that  they  are 
essentially  jura  in  personam-,  not  rights  against  the  world  at  large,  but  rights 
against  certain  persons.." 

See  also  Maitland,  Trust  and  Corporation  (1904),  reprinted  in  3  Collected 
Papers,  321,  325. 

6  (5th  ed.)  Vol.  I,  p.  378:  "By  the  proAisions  of  that  part  of  the  English  law 
which  is  called  equity,  a  contract  to  sell  at  once  vests  jus  in  rem  or  ownership  in  the 
buyer,  and  the  seller  has  only  jus  in  re  aliena.  ...  To  complete  the  transaction 
the  legal  interest  of  the  seller  must  be  passed  to  the  buj'er,  in  legal  form.  To  this 
purpose  the  buyer  has  only  jus  in  personam:  a  right  to  compel  the  seller  to  pass 
his  legal  interest;  but  speaking  generally,  he  has  dominium  or  jus  in  rem,  and  the 
instrument  is  a  conveyance. ' ' 

"  (2d  ed.,  1907)  p.  230:  "If  we  have  regard  to  the  essence  of  the  matter  rather 
than  to  the  form  of  it,  a  trustee  is  not  an  owner  at  all,  but  a  mere  agent,  upon 
whom  the  law  has  conferred  the  power  and  imposed  the  duty  of  administering  the 


AH  APPLIKl)   IN   .irOKIAL   REASONING  25 

Mr.  AVliitloek"  in  their  voiy  recent  eontrilmtioiis  to  our  periodical 
literature. 

It  is  believed  that  all  of  tiie  discussions  and  analyses  referred  to 
are  inadecjuate.  Perhaps,  however,  it  would  liave  to  he  admitted  that 
even  the  great  intrinsic  interest  of  the  subject  itself  and  the  note- 
worthy divergence  of  opinion  existing  among  thought f»il  lawyers  of 
all  times  would  fail  to  afford  more  than  a  comparatively  slight  excuse 
for  any  further  discussion  considered  as  a  mere  end  in  itself.  But, 
<|uite  apart  from  the  presumal)ly  practical  consideration  of  endeavor- 
ing to  "think  straight"  in  relation  to  all  legal  problems,  it  is  apparent 
that  the  true  analysis  of  trusts  and  other  e(juitable  interests  is  a  matter 
that  should  appeal  to  even  the  most  extreme  pragmatists  of  the  law. 
It  may  well  be  that  one's  view  as  to  the  correct  analysis  of  such 
interests  would  control  the  decision  of  a  mimber  of  specific  (piestions. 
This  is  obviously  tnie  as  regards  the  solution  of  many  difficult  and 
delicate  problems  in  constitutional  law  and  in  the  conflict  of  laws.'" 
So,  too,  in  certain  questions  in  the  law  of  perpetuities,  the  intrinsic 
nature  of  equitable  interests  is  of  great  significance,  as  attested  by 
the  well-known  Gomm  case'^  and  others  more  or  less  similar.     The 

property  of  another  person.  In  legal  theory,  however,  he  is  not  a  mere  agent,  but 
an  owner.  He  is  a  person  to  whom  the  property  of  someone  else  is  fictitionsly 
attributed  by  the  law,  to  the  intent  that  the  rights  and  powers  thus  vested  in  a 
nominal  owner  shall  be  used  by  him  on  behalf  of  the  real  owner." 

8  See  Walter  G.  Hart  (author  of  Difiest  of  Law  of  Tnuits),  The  Place  of 
Trust  in  Jurisprudence,  (1912)  28  Law  Quarterly  Review,  290,  296.  His  position 
is  substantially  that  of  Ames  and  Maitland. 

At  the  end  of  this  article  Sir  Frederick  Pollock,  the  editor,  puts  the  query: 
"Why  is  Trust  not  entitled  to  rank  as  a  head  .s«i  fiincri^?" 

9  See  A.  N.  Whitlock,  Classification  of  the  Law  of  TruMs,  (191.T)  1  California 
Law  Review,  215,  218:  "It  is  submitted,"  says  the  writer,  "that  the  cestui  has  in 
fact  something  more  than  a  right  in  personam,  that  such  a  right  might  be  more 
properly  described  as  a  right  in  personam  ad  rem,  or,  possibly,  a  right  in  rem  per 
personam." 

Surely  such  nebulous  an<l  ruiiibrotis  cxi)rcssions  as  those  could  hardly  fail  to 
make  "confusion  worse  confounded." 

10  See  Beale,  Eqititahle  Interests  in  Foreifin  Vropertij,  (1907)  20  Harvard  Law 
Review,  382;  and  compare  the  important  cases,  Fall  r.  Easiin  (1905).  "5  Neb., 
104;  s.  0.  (1909),  215  U.  S.,  1,  14-15  (especially  concurring  opinion  of  Holmes, 
J.)  ;  fielover,  Bates  rf-  Co.  v.  Walsh  (1912),  226  U.  S.,  112;  Bank  of  Africa  LiviUed 
V.  Cohen  [1909]  2  Ch.  129,  143. 

n  (1882)  20  Ch.  D.  562,  580,  per  Sir  George  .Tessel.  M.  R. :  "If  then  the  rule 
as  to  remoteness  applies  to  a  covenant  of  this  nattire,  this  covenant  clearly  is  bad 
as  extending  beyond  the  period  allowed  by  the  rule.  Whether  the  rule  applies  or 
not  depends  upon  this,  as  it  ap]iears  to  me,  does  or  does  not  the  covenant  give 
an  interest  in  the  land?  ...  If  it  is  a  mere  i)ersonal  contract  it  cannot  be 
enforced  against  the  assignee.     Therefore  the  company  must  admit  that  somehow 


26  FUNDAMENTAL  LEGAL  CONCEPTIONS 

same  thing  is  apt  to  be  true  of  a  number  of  special  questions  relating 
to  the  subject  of  bona  fide  purchase  for  value.    So  on  indefinitely." 

But  all  this  may  seem  like  misplaced  emphasis ;  for  the  suggestions 
last  made  are  not  peculiarly  applicable  to  equitable  interests:  the 
same  points  and  the  same  examples  seem  valid  in  relation  to  all  pos- 
sible kinds  of  jural  interests,  legal  as  well  as  equitable, — and  that  too, 
Avhether  we  are  concerned  with  ' '  property, "  "  contracts, "  "  torts, ' '  or 
any  other  title  of  the  law.  Special  reference  has  therefore  been  made 
to  the  subject  of  trusts  and  other  equitable  interests  only  for  the 
reason  that  the  striking  divergence  of  opinion  relating  thereto  con- 
spicuously exemplifies  the  need  for  dealing  somewhat  more  inten- 
sively and  systematically  than  is  usual  with  the  nature  and  analysis 
of  all  types  of  jural  interests.  Indeed,  it  would  be  virtually  impos- 
sible to  consider  the  subject  of  trusts  at  all  adequately  without,  at  the 
very  threshold,  analyzing  and  discriminating  the  various  fundamental 
conceptions  that  are  involved  in  practically  every  legal  problem.  In 
this  connection  the  suggestion  may  be  ventured  that  the  usual  dis- 
cussions of  trusts  and  other  jural  interests  seem  inadequate  (and  at 
times  misleading)  for  the  very  reason  that  they  are  not  founded  on 
a  sufficiently  comprehensive  and  discriminating  analysis  of  jural 
relations  in  general.  Putting  the  matter  in  another  way,  the  ten- 
dency— and  the  fallacy — has  been  to  treat  the  specific  problem  as 
if  it  were  far  less  complex  than  it  really  is;  and  this  commendable 
effort  to  treat  as  simple  that  which  is  really  complex  has,  it  is 
believed,  furnished  a  serious  obstacle  to. the  clear  understanding,  the 
orderly  statement,  and  the  correct  solution  of  legal  problems.  In 
short,  it  is  submitted  that  the  right  kind  of  simplicity  can  result  only 
from  more  searching  and  more  discriminating  analysis. 

If,  therefore,  the  title  of  this  article  suggests  a  merely  philo- 
sophical inquiry  as  to  the  nature  of  law  and  legal  relations, — a  dis- 
cussion regarded  more  or  less  as  an  end  in  itself. — the  writer  may 
be  pardoned  for  repudiating  such  a  connotation  in  advance.  On 
the  contrary,  in  response  to  the  invitation  of  the  editor  of  this 
journal,  the  main  purpose  of  the  writer  is  to  emphasize  certain  oft- 
neglected  matters  that  may  aid  in  the  understanding  and  in  the 
solution  of  practical,  everyday  problems  of  the  law.     With  this  end 

it  hinds  the  land.  But  if  it  binds  the  land,  it  creates  an  equitable  interest  in  the 
land." 

12  Compare  Ball  v.  MUlilcen  (1910),  31  E.  L,  36;  76  Atl.,  789,  793,  involving  a 
point  other  than  perpetuities,  but  quoting  in  support  of  the  decision  reached 
Sir  George  Jessel's  language  as  to  "equitable  interests  in  land."  See  preceding 
note. 


A;^  APPLIED   IX  JUDICIAL  RLASONING  27 

in  view,  the  present  article  and  another  soon  to  follow  will  diseuss, 
as  of  chief  concern,  the  basic  conceptions  of  the  law, — the  legal 
elements  that  enter  into  all  types  of  jnral  interests.  A  later  article 
will  deal  specially  with  the  analysis  of  certain  typical  and  important 
interests  of  a  complex  character, — more  particularly  trusts  and  other 
ecpiitable  interests.  In  passing,  it  seems  necessary  to  state  that  both 
of  these  articles  are  intended  more  for  law  school  students  than  for 
any  other  class  of  readers.  For  that  reason,  it  is  hojicd  that  the 
more  learned  reader  may  pardon  certain  parts  of  the  discussion  that 
might  otherwise  seem  unnecessarily  elementary  and  detailed.  On  the 
other  hand,  the  limits  of  spape  inherent  in  a  periodical  article  must 
furnish  the  excuse  for  as  great  a  brevity  of  treatment  as  is  con- 
sistent with  clearness,  and  for  a  comparatively  meager  discussion — or 
even  a  total  neglect — of  certain  matters  the  intrinsic  importance  of 
which  might  otherwise  merit  greater  attention.  In  short,  the 
emphasis  is  to  be  placed  on  those  points  believed  to  have  the  greatest 
practical  value. 

LEGAL  CONX'EPTIOXS  CONTRASTED  AVITII  N()X- 
LEGAL  CONCEPTIONS 

At  the  very  outset  it  seems  necessary  to  emphasize  the  importance 
of  differentiating  purely  legal  relations  from  tiie  physical  and  mental 
facts  that  call  such  relations  into  being.  Obvious  as  this  initial  sug- 
gestion may  seein  to  be,  the  arguments  that  one  may  hear  in  court 
almost  any  day,  and  likewise  a  consideralile  number  of  judicial 
opinions,  afford  ample  evidence  of  the  inveterate  and  ini fortunate 
tendency  to  confuse  and  blend  the  legal  and  the  non-legal  quantities 
in  a  given  problem.    There  are  at  least  two  special  reasons  for  this. 

For  one  thing,  the  association  of  ideas  involved  in  the  two  sets  of 
relations — the  physical  and  the  mental  on  the  one  hand,  and  tiie  purely 
legal  on  the  other — is,  in  the  very  nature  of  the  case,  extremely  close. 
This  fact  has  necessarily  had  a  marked  influence  upon  the  general 
doctrines  and  the  specific  rules  of  early  systems  of  law.  Thus,  we  are 
told  by  Pollock  and  ^Maitland : 

''Ancient  German  law.  like  ancient  Roman  law.  sees  great  diffi- 
culties in  the  way  of  an  assignment  of  a  debt  or  other  benefit  of  a 
contract  .  .  .  men  do  not  see  how  there  can  be  a  transfer  of  a  right 
unless  that  right  is  embodied  in  .some  coqioreal  thing.'-'  The  history 
of  th(^  incorporeal  things  has  shown  us  this:  they  are  not  completely 
transferred  until  the  transferee  has  obtained  seisin,  has  turned  his 
beasts  onto  the  pasture,  presented  a  clerk  to  the  church  or  hanged  a 

12a  Compare,  to  the  same  effect,  Holmes,  The  Common  Law  (1S81).  400. 


28  FUNDAMENTAL  LEGAL  CONCEPTIONS 

thief  upon  the  gallows.  A  covenant  or  a  warranty  of  title  may  be  so 
bound  up  with  land  that  the  assignee  of  the  land  will  be  able  to  sue 
the  covenantor  or  warrantor.  "^^ 

In  another  connection,  the  same  learned  authors  observe : 

' '  The  realm  of  medieval  law  is  rich  with  incorporeal  things.  Any 
permanent  right  which  is  of  a  transferable  nature,  at  all  events  if  it 
has  what  we  may  call  a  territorial  ambit,  is  thought  of  as  a  thing  that 
is  very  like  a  piece  of  land.  Just  because  it  is  a  thing  it  is  transfer- 
able. This  is  no  fiction  invented  by  the  speculative  jurists.  For  the 
popular  mind  these  things  are  things.  The  lawyer's  business  is  not 
to  make  them  things  but  to  point  out  that  they  are  incorporeal.  The 
layman  who  wishes  to  convey  the  advowson  of  a  church  will  say  that 
he  conveys  the  church ;  it  is  for  Bracton  to  explain  to  him  that  what 
he  means  to  transfer  is  not  that  structure  of  wood  and  stone  which 
belongs  to  God  and  the  saints^  but  a  thing  incorporeal,  as  incorporeal 
as  his  own  soul  or  the  anima  mundi."^^ 

A  second  reason  for  the  tendency  to  confuse  or  blend  non-legal  and 
legal  conceptions  consists  in  the  ambiguity  and  looseness  of  our  legal 
terminology.  The  word  "property"  furnishes  a  striking  example. 
Both  with  lawyers  and  wdth  laymen  this  term  has  no  definite  or  stable 
connotation.  Sometimes  it  is  employed  to  indicate  the  physical  object 
to  which  various  legal  rights,  privileges,  etc.,  relate;  then  again — 
with  far  greater  discrimination  and  accuracy — the  word  is  used  to 
denote  the  legal  interest  (or  aggregate  of  legal  relations)  appertaining 
to  such  physical  object.  Frequently  there  is  a  rapid  and  fallacious 
shift  from  the  one  meaning  to  the  other.  At  times,  also,  the  term  is 
used  in  such  a  "blended"  sense  as  to  convey  no  definite  meaning 
whatever. 

For  the  purpose  of  exemplifying  the  looser  usage  just  referred  to, 
we  may  quote  from  ^Vilson  v.  Ward  Lumder  Co.:^^ 

"The  term  'property,'  as  commonly  used,  denotes  any  external 
object  over  ivhich  the  right  of  property  is  exercised.  In  this  sense  it 
is  a  very  wide  term,  and  includes  every  class  of  acquisitions  which  a 
man  can  own  or  have  an  interest  in." 

Perhaps  the  ablest  statement  to  exemplify  the  opposite  and  more 
accurate  usage  is  that  of  Professor  Jeremiah  Smith  (then  Mr.  Justice 
Smith)  in  the  leading  case  of  Eaton  v.  B.  C.  &  M.  R.  R.  Co.-^^ 

"In  a  strict  legal  sense,  land  is  not  'property,'  but  the  subject  of 

13  2  Hist.  Eng.  Law  (2d  ed.,  1905),  226. 
.■i-ilUd.,  124. 

15  (1895)  67  Fed.  Eep.,  674,  677.  For  a  somewhat  similar,  and  even  more  eon- 
fusing,  form  of  statement,  see  Iv  re  Fixen  (1900),  102  Fed.  Rep.,  295,  296. 

ifi  51  N.  H.,  504,  511.  See  also  the  excellent  similar  statements  of  Comstoek, 
J.,  in  Wynehamer  v.  People  (1856),  13  N.  Y.,  378,  396;  Selden,  J.,  s.  c,  13  N.  Y., 


AS  APPLIED  IN  JUDICIAL  REASONING  29 

property.  The  term  'property,'  altliough  in  common  parlance  fre- 
quently applied  to  a  tract  of  land  or  a  chattel,  in  its  U'gul  signification 
'means  only  the  riufhts  of  the  owner  in  relation  to  it.'  'It  denotes  a 
right  over  a  determinate  thing.'  'Property  is  the  right  of  any  person 
to  possess,  use,  enjoy,  and  dispose  of  a  thing.'  Selden,  J.,  in  Wyne- 
ham(r  v.  People,  13  X.  Y.,  378,  p.  433;  1  Blackstone's  Com..  138;  2 
Austin's  Jurisprudence,  3d  ed.,  817,  818.  .  .  .  The  right  of  indefinite 
user  (or  of  using  indefinitely)  is  an  essential  (piality  of  absolute  prop- 
erty, without  which  al)solute  property  can  have  no  existence.  .  .  . 
This  right  of  user  necessarily  includes  the  right  and  power  of  exclud- 
ing others  from  usinsf  the  land.  See  2  Austin  on  Jurispruthncc,  3d 
ed.,  836;  Wells,  J.,  m  ^Valher  v.  0.  C.  ir.  h'.  /.'..  103  Mass..  10, 
p.  14.  "i«^ 

Another  useful  passage  is  to  be  found  in  the  opinion  of  Sherwood, 
J.,  in  St.  Louis  v.  Hall:^' 

"Sometimes  the  term  is  applied  to  the  thing  itself,  as  a  horse,  or  a 
tract  of  land ;  these  things,  however,  though  the  subjects  of  projjfrty. 
are,  when  coupled  with  possession,  l)ut  the  indicia,  tiie  visible  mani- 
festation of  invisible  rights,  'the  evidence  of  things  not  seen.' 

"Property,  then,  in  a  determinate  object,  is  composed  of  certain 
constituent  elements,  to  wit :  The  unrestricted  right  of  use,  enjoyment, 
and  disposal,  of  that  object." 

In  connection  with  the  ambiguities  latent  in  the  term  "property" 
it  seems  well  to  observe  that  similar  looseness  of  thought  and  expres- 
sion lurks  in  the  supposed  (Imt  false)  contrast  between  "corporeal" 
and  "incoi'poreal"  property.  The  second  passage  above  quoted  from 
Pollock  and  IMaitland  exhibits  one  phase  of  this  matter.  For  further 
striking  illustration,  reference  may  be  made  to  Blackstone's  well- 
known  discussion  of  corporeal  and  incorporeal  hereditaments.  Thus, 
the  great  commentator  tells  us : 

"But  an  hereditament,  says  Sir  Edward  Coke,  is  by  much  the 
largest  and  most  comprehensive  expression ;  for  it  includes  not  only 


378,  433-434;  Ryan,  C,  in  Law  v.  Bees  Printwg  Co.  (1894).  41  Neb..  127,  146; 
Magruder,  J.,  in  Dixon  v.  People  (1897),  168  111.,  179,  190. 

16a  Compare  the  remarks  by  Gray,  J.,  dissenting  in  Eoberson  v.  Bochester  Fold- 
ing Box  Co.  (1902),  171  N.  Y.,  .538.  64  N.  E..  442:  "Property  is  not,  necessarily, 
the  thing  itself,  which  is  owned;  it  is  the  right  of  the  owner  in  relation  to  it.  The 
right  to  be  protected  in  one's  possession  of  a  thing,  or  in  one's  privileges,  belong- 
ing to  him  as  an  individual,  or  secured  to  him  as  a  member  of  the  commonwealth, 
is  property,  and  as  such  entitled  to  the  protection  of  the  law. ' ' 

1'  (1893)  116  Mo.,  527,  533 -.534.  That  the  last  sentence  quoted  is  not  alto- 
together  adequate  as  an  analysis  of  property  will  appear,  it  is  hoped,  from  the 
latter  part  of  the  present  discussion. 

See  also,  as  regards  the  term,  "property."  the  opinion  of  Doe.  C.  .1.,  in  Smith 
V.  Fairloh  (1894),  68  N.  H.,  123.  144-145.  ("By  considering  the  property  dw- 
solved  into  the  legal  rights  of  which  it  consists,"  etc.) 


30  .     FUNDAMENTAL  LEGAL  CONCEPTIONS 

lands  and  tenements,  but  whatsoever  may  he  inherited,  be  it  corporeal 
or  incorporeal,  real,  personal,  or  mixed.  ""^^ 

It  is  clear  that  only  legal  interests  as  such  can  be  inherited ;  yet  in 
the  foregoing  quotation  there  is  inextricable  confusion  between  the 
physical  or  "corporeal"  objects  and  the  corresponding  legal  interests^ 
all  of  which  latter  must  necessarily  be  ' '  incorporeal, "  or  "  invisible, ' ' 
to  use  the  expression  of  Mr.  Justice  Sherwood.  This  ambiguity  of 
thought  and  language  continues  throughout  Blackstone's  discussion; 
for  a  little  later  he  says : 

"Hereditaments,  then,  to  use  the  largest  expression,  are  of  two 
kinds,  corporeal  and  incorporeal.  Corporeal  consist  of  such  as  affect 
the  senses,  such  as  may  be  seen  and  handled  by  the  body ;  incorporeal 
are  not  the  objects  of  sensation,  can  neither  be  seen  nor  handled ;  are 
creatures  of  the  mind,  and  exist  only  in  contemplation." 

Still  further  on  he  says: 

" '  An  incorporeal  hereditament  is  a  right  issuing  out  of  a  thing  cor- 
porate (Avhether  real  or  personal),  or  concerning,  or  annexed  to,  or 
exercisable  within,  the  same.  .   .  . 

' '  Incorporeal  hereditaments  are  principally  of  ten  sorts :  advowsons, 
tithes,  commons,  ways,  offices,  dignities,  franchises,  corodies  or  pen- 
sions, annuities,  and  rents. ' ' 

Since  all  legal  interests  are  "incorporeal" — consisting,  as  they  do,, 
of  more  or  less  limited  aggregates  of  abstract  legal  relations — such  a 
supposed  contrast  as  that  sought  to  be  drawn  by  Blackstone  can  but 
serve  to  mislead  the  unwary.  The  legal  interest  of  the  fee  simple 
owner  of  land  and  the  comparatively  limited  interest  of  the  owner  of 
a  "right  of  way"  over  such  land  are  alike  so  far  as  " incorporeality " 
is  concerned;  the  true  contrast  consists,  of  course,  primarily  in  the 
fact  that  the  fee  simple  owner 's  aggregate  of  legal  relations  is  far  more 
extensive  than  the  aggregate  of  the  easement  owner. 

Much  of  the  difficulty,  as  regards  legal  terminology,  arises  from  the 
fact  that  many  of  our  words  were  originally  applicable  only  to  physi- 
cal things  ;^^  so  that  their  use  in  connection  with  legal  relations  is, 
strictly  speaking,  figurative  or  fictional.     The  term  "transfer"  is  a 

IS  2  Black.  Com.  (1765),  16-43. 

19  Compare  Pollock  &  Maitland,  History  of  English  Law  (2d  ed.,  1905),  Vol. 
II,  p.  31 :  "Few,  if  any,  of  the  terms  in  our  legal  vocabulary  have  always  been 
technical  terms.  The  license  that  the  man  of  science  can  allow  himself  of  coining 
new  words  is  one  which  by  the  nature  of  the  case  is  denied  to  lawyers.  They  have 
to  take  their  terms  out  of  the  popular  speech;  gradually  the  words  so  taken  are 
defined ;  sometimes  a  word  continues  to  have  both  a  technical  meaning  for  lawyers 
and  a  different  and  vaguer  meaning  for  laymen;  sometimes  the  word  that  lawyers 
have  adopted  is  abandoned  by  the  laity. ' '  Compare  also  ibid.,  p.  33.  [Compare 
also  the  discussion  of  Lord  Kinnear  in  Banh  cf  Scotland  v.  Macleod  [1914] 
A.  C,  311,  324.] 


AS  APPLIED  rx  JUDICIAL  REASONING  31 

good  example.  If  X  says  that  ho  lias  transferred  his  watch  to  Y,  he 
may  conceivably  mean,  quite  literally,  that  he  has  physically  handed 
over  the  watch  to  Y;  or,  more  likely,  that  he  has  "transferred"  his 
legal  interest,  without  any  delivery  of  possession, — the  latter,  of 
course,  being  a  relatively  figurative  use  of  the  term.  This  point  will 
be  reached  again,  when  we  come  to  treat  of  the  "transfer"  of  legal 
interests.  As  another  instance  of  this  essentially  metapiiorical  u.se  of 
a  term  borrowed  from  the  physical  world,  the  word  "power"  may  be 
mentioned.  In  legal  discourse,  as  in  daily  life,  it  may  frequently  be 
used  in  the  sense  of  physical  or  mental  capacity  to  do  a  thing;  but, 
more  usually  and  aptly,  it  is  used  to  indicate  a  "legal  power,"  the 
connotation  of  which  latter  term  is  fundamentally  different.  The 
same  observations  apply,  mutatis  mutandis,  to  the  term  "liberty." 

Passing  to  the  field  of  contracts,  we  soon  discover  a  similar  in- 
veterate tendency  to  confuse  and  blur  legal  discussions  by  failing  to 
discriminate  between  the  mental  and  physical  facts  involved  in  the 
so-called  "agreement"  of  the  parties,  and  the  legal  "contractual 
obligation"  to  which  those  facts  give  rise.  Such  ambiguity  and  con- 
fusion are  peculiarly  incident  to  the  use  of  the  term  "contract."  One 
moment  the  word  may  mean  the  agreement  of  the  parties;  and  then, 
with  a  rapid  and  unexpected  shift,  the  writer  or  speaker  may  use  the 
term  to  indicate  the  contractual  obligation  created  by  law  as  a  result 
of  the  agreement. 

The  distinction  between  the  agreement  of  the  parties  on  the  one 
hand,  and,  on  the  other,  the  legal  obligation  (or  aggregate  of  present 
and  potential  legal  rights,  privileges,  powers  and  immunities,  etc.) 
is  clearly  recognized  and  forcefully  stated  in  Aijcoch  v.  Martin  (1867), 
37  Ga.,  124,  128  and  143  (per  Harris,  J.)  : 

"The  obligation  then  is  not  the  contract,^^''  is  not  in  the  contract, 
nor  does  it  constitute  any  one  of  its  terms,  nor  is  it  e(|uivalent  to  all 
the  terms  united.  .  .  .  When  the  contract  is  made,  the  existing,  bind- 
ing law,  whatever  it  may  be,  being  the  obligation  on  promisor  to  per- 
form his  undertaking,  co  instanti  attaches.  .  .  .  The  terms  of  the 
contract  are  made  alone  by  the  parties  to  the  agreement. 

"The  obligation  is  the  creature  of  law, — is  the  law  existing  when 
the  contract  is  made,  binding  to  the  performance  of  the  promi.se,  and 
is  furnished  solely  by  society." 

Further  instances  of  this  sort  of  ambiguity  will  be  noticed  as  the 
discussion  proceeds.  . 

19a  "A  contract  is  an  obligation  attached  hy  the  mere  force  of  law  to  certain 
acts  of  the  parties,  usually  words,  which  ordinarily  accompany  and  represent  known 
intent."  Hand,  J.,  in  Hotrldiss  v.  Natiiwal  CU)!  Bank  (1911),  200  Fed.  2S7. 
Compare  also  Baldwin,  J.,  in  McCracken  v.  Howard  (1844),  3  How.  608.  612. 


32  FUNDAMENTAL  LEGAL  CONCEPTIONS 

OPERATIVE  FACTS  CONTRASTED  WITH  EVIDENTIAL 

FACTS 

For  the  purpose  of  subsequent  convenient  reference,  it  seems  neces- 
sary at  this  point  to  lay  emphasis  upon  another  important  distinction 
inherent  in  the  very  nature  of  things.  The  facts  important  in  rela- 
tion to  a  given  jural  transaction  may  be  either  operative  facts  or 
evidential  facts.  Operative,  constitutive,  causal,  or  dispositive  facts 
are  those  which,  under  the  general  legal  rules  that  are  applicable, 
suffice  to  change  legal  relations,  that  is,  either  to  create  a  new  relation, 
or  to  extinguish  an  old  one,  or  to  perform  both  of  these  functions 
simultaneously.^"  For  example,  in  the  creation  of  a  contractual  obli- 
gation between  A  and  B,  the  affirmative  operative  facts  are,  inter  alia, 
that  each  of  the  parties  is  a  human  being,  that  each  of  them  has  lived 
for  not  less  than  a  certain  period  of  time  (is  not  "under  age"),  that 
A  has  made  an  "offer,"  that  B  has  "accepted"  it,  etc.  It  is  some- 
times necessary  to  consider,  also,  what  may,  from  the  particular  point 
of  view,  be  regarded  as  negative  operative  facts.  Thus,  e.g.,  the  fact 
that  A  did  not  wilfully  misrepresent  an  important  matter  to  B,  and 
the  fact  that  A  had  not  "revoked"  his  offer,  must  really  be  included 
as  parts  of  the  totality  of  operative  facts  in  the  case  already  put. 

Taking  another  example, — this  time  from  the  general  field  of  torts — 
if  X  commits  an  assault  on  Y  by  putting  the  latter  in  fear  of  bodily 
harm,  this  particular  group  of  facts  immediately  creates  in  Y  the 

20  Compare  Waldo,  C.  J.,  in  Wliite  v.  Mvltonomah  Co.  (1886),  13  Ore.,  317,  323: 
"  A  '  right '  has  been  defined  by  Mr.  Justice  Holmes  to  be  the  legal  consequence 
which  attaches  to  certain  facts.  (The  Common  Law,  214.)  Every  fact  which 
forms  one  of  the  group  of  facts  of  which  the  right  is  the  legal  consequence  apper- 
tains to  the  substance  of  the  right." 

The  present  writer's  choice  of  the  term  "operative"  has  been  suggested  by 
the  following  passage  from  Thayer,  Preliminary  Treatise  on  Evidence  (1898), 
p.  393:  "Another  discrimination  to  be  observed  is  that  between  documents  which 
constitute  a  contract,  fact,  or  transaction,  and  those  which  merely  certify  and 
evidence  something  outside  of  themselves, — a  something  valid  and  operative, 
independent  of  the  writing. ' ' 

Compare  also  Holland,  Jurisprudence  (10th  ed.,  1906),  151:  "A  fact  giving  rise 
to  a  right  has  long  been  described  as  a  'title';  but  no  such  well-worn  equivalent 
can  be  found  for  a  fact  through  which  a  right  is  transferred,  or  for  one  by  which  a 
right  is  extinguished.  A  new  nomenclature  was  accordingly  invented  by  Bentham, 
which  is  convenient  for  scientific  use,  although  it  has  not  found  its  way  into  ordi- 
nary language.  He  describes  this  whole  class  of  facts  as  'Dispositive';  distin- 
guishing as  'Investitive'  those  by  means  of  which  a  right  comes  into  existence,  as 
'  Divestitive '  those  through  which  it  terminates,  and  as  '  Translative '  those  through 
which  it  passes  from  one  person  to  another. ' ' 

The  word  "ultimate,"  sometimes  used  in  this  connection,  does  not  seem  to  be  so 
pointed  and  useful  a  term  as  either  ' '  operative  "  or  ' '  constitutive. ' ' 


AS  APPLIKD   IX  JIDICIAL  KKASoNINC  33 

privilege  of  self-defense, — tliat  is,  the  privilege  of  using  sufficient 
force  to  repel  X's  attack;  or,  correlatively,  the  otherwise  existing 
duty  of  Y  to  refrain  from  the  application  of  force  to  the  person  of 
X  is,  by  virtue  of  the  special  operative  facts,  iiiiiiKMliatcly  tfriiiinated 
or  extinguished. 

In  passing,  it  may  not  he  amiss  to  notice  that  the  term,  "facts  in 
issue,"  is  sometimes  used  in  the  present  connection.  If,  as  is  usual, 
the  term  means  "facts  put  in  issue  by  the  pleadings,"  the  expression 
is  an  unfortunate  one.  The  operative  facts  alleged  by  the  pleadings  are 
more  or  less  generic  in  character;  and  if  the  pleadings  be  sufficient, 
only  such  generic  operative  facts  are  "put  in  issue."  The  operative 
facts  of  real  life  are,  on  the  other  hand,  very  specitic.  That  being  so, 
it  is  clear  that  the  real  and  specific  facts  finally  relied  on  are  com- 
paratively seldom  put  in  issue  by  the  pleadings.  Thus.  if.  in  an 
action  of  tort,  the  declaration  of  A  alleges  that  he  was.  through  the 
carelessness,  etc.,  of  15,  bitten  by  the  latter 's  dog.  the  fact  alleged  is 
generic  in  character,  and  it  matters  not  whether  it  was  dog  Jim  or 
dog  Dick  that  did  the  biting.  Even  assuming,  therefore,  that  the 
biting  was  done  by  Jim  (rather  than  by  Dick),  it  could  not  be  .said 
that  this  specific  fact  was  put  in  issue  by  the  pleadings.  Similarly, 
and  more  obviously,  the  pleading  in  an  ordinary  action  involving 
so-called  negligence,  is  usually  very  generic  in  character,-^  so  that 
any  one  of  various  possible  groups  of  specific  operative  facts  would 
suffice,  so  far  as  the  defendant's  obligation  ex  elelicto  is  concerned. 
It  therefore  could  not  be  said  that  any  one  of  such  groups  had  b<>en 
put  in  issue  by  the  pleadings.  A  common  fallacy  in  this  connection  is 
to  regard  the  specific  operative  facts  established  in  a  given  ease  as 
being  but  "evidence"  of  the  generic  (or  "ultimate")  operative  facts 
alleged  in  the  pleadings.^- 


21  Compare,  however,  Illi>ioi.-<  Si,,l  Co.  v.  Ostrouski  (1902),  194  111.,  376,  384, 
correctly  sustaining  a  declaration  alicginf;  the  operative  facts  .tpccificallij  instead 
of  gcnerically,  as  required  by  the  more  ajiprovcd  fnmis  of  pleading.  [See  also  the 
discussion  in  Nagel  v.  United  lx}is,  Co.  (1913),  169  Mo.  Apj>..  284;  152  S.  W..  621  ; 
Erdman  v.  United  Ei/s.  Co.  (1913),  173  Mo.  App.,  98;  155  S.  W.,  1081;  Israel  v. 
United  Bi/s.  Co.  (1913),  172  Mo.  App.,  656;  1.55  R.  W.,  1092.] 

The  rules  of  pleading  determining  whether  allegations  must  be  generic  or  spe- 
cific— and  if  the  latter,  to  what  degree — arc,  like  other  rules  of  law,  based  on  con- 
siderations of  policy  and  convenience.  TIuis  the  facts  constituting  fraud  are  fre- 
quently required  to  be  alleged  in  comparatively  specific  form;  and  similarly  as 
regards  crueUi/  in  a  suit  for  divorce  based  on  that  ground.  The  rea.sons  of  policy 
are  obvious  in  each  case.  [For  a  vali:able  explanation  as  regards  specific  pleading 
of  fraud,  see  Mnir  v.  Fio  Grande  Euhher  Estates,  Lim.  [1913]  A.  C,  853,  863, 
864.] 

22  Compare  McCaujhey  v.  Schucttc  (1S97),  117  Cal.,  223.    While  the  decision  in 


34  FUNDAMENTAL  LEGAL  CONCEPTIONS 

An  evidential  fact  is  one  which,  on  being  ascertained,  affords  some 
logical  basis — not  conclusive — for  inferring  some  other  fact.  The 
latter  may  be  either  a  constitutive  fact  or  an  intermediate  evidential 
fact.  Of  all  the  facts  to  be  ascertained  by  the  tribunal,  the  operative 
are,  of  course,  of  primary  importance ;  the  evidential  are  subsidiary  in 
their  functions.-^  As  a  rule  there  is  little  danger  of  confusing  evi- 
dential facts  with  operative  facts.  But  there  is  one  type  of  case  that 
not  infrequently  gives  rise  to  this  sort  of  error.  Suppose  that  in  Janu- 
ary last  a  contractual  obligation  was  created  by  written  agreement 
passing  between  A  and  B.  In  an  action  now  pending  between  these 
parties,  the  physical  instrument  is  offered  for  inspection  by  the 
tribunal.  If  one  were  thoughtless,  he  would  be  apt  to  say  that  this 
is  a  case  where  part  of  the  operative  facts  creating  the  original  obliga- 
tion are  directly  presented  to  the  senses  of  the  tribunal.  Yet  a 
moment's  reflection  will  show  that  such  is  not  the  case.  The  document, 
in  its  then  existing  shape,  had,  as  regards  its  operative  effect,  spent  its 
force  as  soon  as  it  w^as  delivered  in  January  last.  If,  therefore,  the 
unaltered  document  is  produced  for  inspection,  the  facts  thus  ascer- 
tained must,  as  regards  the  alleged  contractual  agreement,  be  purely 
evidential  in  character.  That  is  to  say,  the  present  existence  of  the 
piece  of  paper,  its  specific  tenor,  etc.,  may,  along  with  other  evidential 
facts  (relating  to  absence  of  change)  tend  to  prove  the  various  opera- 
tive facts  of  last  January, — to  wit,  that  such  paper  existed  at  that 
time;  that  its  tenor  was  then  the  same  as  it  now  is;  that  it  was 
delivered  by  A  to  B,  and  so  forth. 

It  now  remains  to  observe  that  in  many  situations  a  single  con- 
venient term  is  employed  to  designate  (generically)  certain  mis- 
cellaneous groups  of  operative  facts  which,  though  differing  widely 
as  to  their  individual  ''ingredients,"  have,  as  regards  a  given  matter, 
the  same  net  force  and  effect.  When  employed  with  discrimination, 
the  term  "possession"  is  a  word  of  this  character;  so  also  the  term 

this  case  can  be  supported,  the  statement  that  the  specific  facts  pleaded  were  ' '  evi- 
dentiary" seems  inaccurate  and  misleading. 

There  are,  of  course,  genuine  instances  of  the  fatally  erroneous  pleading  of 
strictly  evidential  facts  instead  of  either  generic  or  specific  operative  facts.  See 
Eogers  v.  Milicaukee  (1861),  13  Wis.,  610;  and  contrast  Illinois  Steel  Co.  v. 
Ostrowski,  supra,  note  21. 

23  Both  operative  and  evidential  facts  must,  under  the  law,  be  ascertained  in 
some  one  or  more  of  four  possible  modes:  1.  By  judicial  admissions  (what  is  not 
disputed)  ;  2.  By  judicial  notice,  or  knowledge  (what  is  known  or  easily  knowable)  ; 
3.  By  judicial  perception  (what  is  ascertained  directly  through  the  seases;  cf. 
"real  evidence")  ;  4.  By  judicial  inference  (what  is  ascertained  by  reasoning  from 
facts  already  ascertained  by  one  or  more  of  the  four  methods  here  outlined). 


AS  APPLIED  IN  JUDICIAL  REASONING  35 

'capacity,"  the  term  ''domicile,"  etc.  But  the  general  tendency  to 
confuse  legal  and  non-legal  (juantities  is  manitVst  here  as  elsewhere ; 
so  that  only  too  frequently  these  words  are  used  rather  nebulously  to 
indicate  legal  relations  as  such.-* 

FUNDAMENTAL  JURAL  RELATIONS  CONTRASTED 
WITH  ONE  ANOTHER 

One  of  the  greatest  hindrances  to  the  clear  understanding,  the 
incisive  statement,  and  the  true  solution  of  li'gal  ])rol)l»Mns  fre<|ut'ntly 
arises  from  the  express  or  tacit  assumption  tliat  all  legal  relations 
jnay  be  reduced  to  "rights"  and  "duties,"  and  that  these  latter 
categories  are  therefore  adecjuate  for  the  purpose  of  analyzing  even 
the  most  complex  legal  interests,  such  as  trusts,  options,  escrows, 
"future"  interests,  corporate  interests,  etc.  Even  if  the  difficulty 
related  merely  to  inade(iuacy  and  ambiguity  of  terminology,  its  seri- 
ousness would  nevertheless  be  worthy  of  definite  recognition  and 
persistent  effort  toward  improvement ;  for  in  any  closely  reasoned 
problem,  whether  legal  or  non-legal,  chameleon-hued  words  are  a  peril 
both  to  clear  thought  and  to  lucid  expression.-'  As  a  matter  of  fact, 
however,  the  above  mentioned  inadeciuacy  and  ambiguity  of  terms 

24  As  an  example  of  this,  compare  Lord  "Westbiiry,  in  B(U  r.  Krnvcih/  (1868), 
L.  E.  1  H.  L.  (Sc),  307:  "Domicile,  therefore,  is  an  idea  of  the  law.  It  is  the 
relation  which  the  law  creates  between  an  individual  and  a  particular  locality  or 
country."  [Compare  the  confusion  in  the  discussion  of  the  same  subject  by  Far- 
well,  J.,  in  In  re  Johnson   [1903]  1  Ch.,  821,  824-825.] 

Contrast  the  far  more  accurate  language  of  Chief  Justice  Shaw,  in  Ahiu<j1on  v. 
Bridgcxi-ater  (1840),  23  Pick.,  170:  "The  fact  of  domicile  is  often  one  of  the 
highest  importance  to  a  person;  it  determines  his  civil  and  political  rights  and 
privileges,  duties  and  obligations.  ..." 

25  In  this  connection,  the  words  of  one  of  the  great  masters  of  the  common  law 
are  significant.  In  his  notable  Preliminary  Treatise  on  Evidence  (1S98),  p.  100. 
Professor  James  Bradley  Thayer  said: 

"As  our  law  develops  it  becomes  more  and  more  important  to  give  definiteness 
to  its  phraseology;  discriminations  multiply,  new  situations  and  complications  of 
fact  arise,  and  the  old  outfit  of  ideas,  discriminations,  and  phrases  has  to  be  care- 
fully revised.  Law  is  not  so  unlike  all  other  subjects  of  human  contemplation  that 
clearness  of  thought  will  not  help  us  powerfully  in  graspinc  it.  If  terms  in  com- 
mon legal  use  are  used  exactly,  it  is  well  to  know  it;  if  thev  are  used  inexactly,  it 
is  well  to  know  that,  and  to  remark  just  how  they  are  used. ' ' 

Perhaps  the  most  characteristic  feature  of  this  author's  groat  constructive  con- 
tribution to  the  law  of  evidence  is  his  constant  insistence  on  the  need  for  clarifying 
our  legal  terminology,  and  making  careful  "discriminations"  between  concep- 
tions and  terms  that  are  constantly  beinjr  treated  as  if  they  were  one  and  the 
same.     See  e.g.,  ihid.,  pp.   vii,   183,   189-190,  278,   306,  351,  355,  390-393.     How 


;^6  FITXDAMENTAL  LEGAL  CONCEPTIONS 

unfortunately  rei^oet,  all  too  often,  corresponding  pancity  and  con- 
fusion as  regards  actual  legal  conceptions.  That  this  is  so  may  appear 
in  some  measure  from  the  discussion  to  follow. 

The  strictly  fundamental  legal  relations  are,  after  all,  s;ui  generic; 
and  thus  it  is  that  attempts  at  formal  definition  are  always  unsatis- 
factory, if  not  altogether  useless.  Accordingly,  the  most  promising 
line  of  procedure  seems  to  consist  in  exhibiting  all  of  the  various 
relations  in  a  scheme  of  "opposites"  and  "correlatives,"  and  then 
proceeding  to  exemplify  their  individual  scope  and  application  in 
concrete  cases.    An  effort  will  be  made  to  pursue  this  method : 

C  right  privilege       power  immunity 

)  no-right      duty  disability     liability 

Jural  Correlatives      ^"^^'*  privilege       power  immunity 

/duty  no-right        liability         disability 

Rights  and  Duties.  As  already  intimated,  the  term  "rights"  tends 
to  be  used  indiscriminately  to  cover  what  in  a  given  case  may  be  a 
privilege,  a  power,  or  an  immunity,  rather  than  a  right  in  the  strictest 
sense;  and  this  looseness  of  usage  is  occasionally  recognized  by  the 
authorities.    As  said  by  Mr.  Justice  Strong  in  People  v.  Dil-emanr^ 

"The  word  'right'  is  defined  by  lexicographers  to  denote,  among 
other  things,  property,  interest,  power,  prerogative,  immunity,  privi- 
lege  (Walker's  Diet,  word  'Right').     In  law  it  is  most  frequently 

great  the  influence  of  those  discriminations  has  been  is  well  known  to  all  students 
of  the  law  of  evidence. 

The  comparatively  recent  remarks  of  Professor  John  Chipman  Gray,  in  his 
Nature  and  Sources  of  the  Law  (1909),  Pref.  p.  viii,  are  also  to  the  point: 

' '  The  student  of  Jurisprudence  is  at  time^  troubled  by  the  thought  that  he  is 
dealing  not  with  things,  but  with  words,  that  he  is  busy  with  the  shape  and  size 
of  counters  in  a  game  of  logomachy,  but  when  he  fully  realizes  how  these  words 
have  been  passed  and  are  still  being  passed  as  money,  not  only  by  fools  and  on 
fools,  but  by  and  on  some  of  the  acutest  minds,  he  feels  that  there  is  work  worthy 
of  being  done,  if  only  it  can  be  done  worthily. ' ' 

No  less  significant  and  suggestive  is  the  recent  and  characteristic  utterance  of 
one  of  the  greatest  jurists  of  our  time,  Mr.  Justice  Holmes.  In  Hyde  v.  United 
States  (1911),  225  U.  S.,  347,  391,  the  learned  judge  very  aptly  remarked:  "It  is 
one  of  the  misfortunes  of  the  law  that  ideas  become  encysted  in  phrases  and  there- 
after for  a  long  time  cease  to  provoke  further  analysis. ' ' 

See  also  Field,  J.,  in  Morgan  v.  Louisiana  (1876),  93  U.  S.,  217,  223,  and  Peck- 
ham,  J.,  in  Phoenix  Ins.  Co.  v.  Tennessee  (1895),  161  U.  S.,  174,  177,  178. 

["Every  student  of  logic  knows,  but  seldom  realizes,  the  power  and  the  actual 
historic  influence  of  terms  in  moulding  thought  and  in  affecting  the  result  of 
controversy."  Professor  John  Henry  Wigmore,  in  (1914)  28  Harvard  Law  Review, 
1.  See  also  Beck,  J.,  in  Citif  of  Buhuque  v.  III.  Central  E.  B.  Co.  (1874),  39  la., 
56,  64.] 

26  (1852)  7  How.  Pr.,  124,  130. 


AS  AI'PLIED   IN  .ITDICIAL  REASONING  37 

applied  to  property  in  its  restricted  sense,  but  it  is  ol'teii  ust-d  to  desig- 
nate power,  prerogative,  and  privilege,  ..." 

Recognition  of  this  anihiguity  is  also  found  in  the  language  of  ]\rr. 
Justice  Jackson,  in  United  States  v.  Patrick:'-' 

"The  words  'right'  or  'privilege'  have,  of  course,  a  variety  of 
meanings,  according  to  the  conneetion  oi-  context  in  which  they  are 
u^S(J?  Their  definition,  as  given  by  standard  lexicograpln'i-s.  inelude 
'that  which  one  has  a  legal  claim  to  >lii,'  'hgal  poiar,'  'axfhority.' 
'immunity  granted  by  authority.'  'the  investiture  with  special  or 
peculiar  rights. '  ' ' 

And,  similarly,  in  the  language  of  ^Ir.  Justice  Sneed.  in  Lonaa  r. 

Stater' 

'"The  state,  then,  is  forbidden  from  making  and  enforcing  an\'  law 
which  shall  abridge  the  privileges  and  immunities  of  citizens  of  the 
United  States.  It  is  said  that  the  words  rights,  privilege s  and  immuni- 
ties, are  abusively  used,  as  if  they  were  synonymous.  The  word  rights 
is  generic,  common,  embracing  whatever  may  be  lawfully  claimed."-* 

It  is  interesting  to  observe,  also,  that  a  tendency  toward  discrimina- 
tion may  be  found  in  a  nund)er  of  important  constitutional  and 
statutory  provisions.  Just  how  accurate  the  distinctions  in  the  mind 
of  the  draftsman  may  have  been  it  is,  of  course,  impossil)le  to  say.""' 

27  (1893)  54  Fed.  Rep.,  338,  34S. 

2S  (1871)  3  Heisk.  (Tenn.),  2S7.  306-307. 

20  See  also,  for  similar  jndic^ial  observations.  Atchifon  cf  Neb.  B.  Co.  r.  Baty 
(1877),  6  Neb.,  37,  40  ("The  term  rifiht  in  civil  society  is  defined  to  mean  that 
which  a  man  is  entitled  to  have,  or  /o  do.  or  to  receive  from  others  within  the  limits 
prescribed  by  law.")  ;  San  Franci.seo  v.  S.  V.  Water  Co.  (1874),  48  Cal..  r)31  ("We 
are  to  ascertain  the  rights,  privilei/es,  power.'i,  duties  and  ohUiiatioiis  of  the  Spring 
Valley  Water  Co.,  by  reference  to  the  general  law.")  [Sh^nr  v.  Profit  (1910),  57 
Or.,  192,  201 ;  109  Pac,  584,  587,  per  Slater,  J. :  "  The  word  '  right '  denotes,  among 
other  things,  'property,'  'interest,'  'power,'  'prerogative,'  'immunity,'  and  'privi- 
lege,' and  in  law  is  most  frequently  applied  to  i)roperty  in  its  restricted  sense.  "J 

Compare  also  Gilbert,  Evi-denee  (4th  ed..  1777),  126:  "The  men  of  one  county, 
city,  hundred,  town,  corporation,  or  parish  are  evidence  in  relation  to  the  riijhts. 
privileges,  immunities  and  affairs  of  such  town,  city,  etc.  "■' 

30  See  Reams  v.  Cordirainers'  Co.  (1S;19).  6  C.  B.  N.  S..  388,  409  (construing 
The  Thames  Conservancy  Act,  1857,  20  and  21  Vict.  c.  cxlvii.,  .s.  179:  "None  of  the 
powers  by  this  act  conferred  .  .  .  shall  extend  to,  take  away,  alter  or  abridge  any 
right,  claim,  privilege,  franchise,  exemption,  or  immunity  to  which  any  owTiers  .  .  . 
of  any  lands  .  .  .  are  now  by  law  entitled.");  Fearon  v.  Mitchrll  (1S72),  L.  R. 
7  Q.  B.,  690,  695  ("The  other  question  remains  to  be  dispo.sed  of,  as  to  whether  the 
ease  comes  within  the  proviso  of  s.  .lO  of  21  and  22  Vict.  c.  98.  that  'no  market  shall 
be  established  in  pursuance  of  this  section  so  as  to  interfere  with  any  rights, 
powers,  or  privileges  enjoyed  within  the  district  by  any  jierson  without  his  con- 
sent.'"); Cal.  Civ.  Code.  sec.  64"^a:  "Building  and  loan  associations  may  be 
formed  under  this  title  with  or  without  guarantee  or  other  capital  stock,  with  all 


38  FUNDAMENTAL  LEGAL  CONCEPTIONS 

Recognizing,  as  we  must,  the  very  broad  and  indiscriminate  use  of 
the  term  "right,"  what  clue  do  we  find,  in  ordinary  legal  discourse, 
toward  limiting  the  w^ord  in  question  to  a  definite  and  appropriate 
meaning  ?  That  clue  lies  in  the  correlative  ' '  duty, ' '  for  it  is  certain 
that  even  those  who  use  the  word  and  the  conception  "right"  in  the 
broadest  possible  way  are  accustomed  to  thinking  of  "duty"  as  the 
invariable  correlative.  As  said  in  Lake  Shore  &  M.  S.  R.  Co.  v. 
Kurtz  :^^ 

"A  duty  or  a  legal  obligation  is  that  which  one  ought  or  ought 
not  to  do.  'Duty'  and  'right'  are  correlative  terms.  When  a  right 
is  invaded,  a  duty  is  violated. '  '^- 

In  other  words,  if  X  has  a  right  against  Y  that  he  shall  stay  off 
tlie  former's  land,  the  correlative  (and  equivalent)  is  that  Y  is  under 
a  duty  toward  X  to  stay  off  the  place.  If,  as  seems  desirable,  we  should 
seek  a  synonym  for  the  term  "right"  in  this  limited  and  proper 
meaning,  perhaps  the  word  ' '  claim ' '  would  prove  the  best.  The  latter 
has  the  advantage  of  being  a  monosyllable.^-*  In  this  connection,  the 
language  of  Lord  Watson  in  Studd  v.  Cook^^  is  instructive : 

"Any  w^ords  which  in  a  settlement  of  moveables  would  be  recog- 
nized by  the  law  of  Scotland  as  sufficient  to  create  a  right  or  claim  in 
favor  of  an  executor  .  .  ,  must  receive  effect  if  used  with  reference 
to  lands  in  Scotland." 

Privileges  and  ^'No-Rights."  As  indicated  in  the  above  scheme  of 
jural  relations,  a  privilege  is  the  opposite  of  a  duty,  and  the  correlative 

the  rights,  powers,  and  privileges,  and  subject  to  all  the  restrictions  and  liabilities 
set  forth  in  this  title.");  Tenn.  Const,  of  1834,  Art.  9,  sec.  7:  "The  legislature 
shall  have  no  power  to  pass  any  law  granting  to  any  individual  or  individuals, 
rights,  privileges  and  immunities  or  exemptions,  other  than  .  .  .").  [See  also 
State  V.  Conlon  (1895),  65  Conn.,  478,  490,  491.] 

31  (1894)  10  Ind.  App.,  60;  37  N.  E.,  303,  304. 

32  See  also  Eoivleij  Parle  Coal,  etc.,  Co.  v.  L.  4-  N.  W.  By.  [1913]  A.  C,  11,  25, 
27  (per  Viscount  Haldane,  L.  C. :  "There  is  an  obligation  (of  lateral  support)  on 
the  neighbor,  and  in  that  sense  there  is  a  correlative  right  on  the  part  of  the  owner 
of  the  first  piece  of  land ; ' '  per  Lord  Shaw :  ' '  There  is  a  reciprocal  right  to  lateral 
support  for  their  respective  lands  and  a  reciprocal  obligation  upon  the  part  of 
each  owner.  .  .  .  No  diminution  of  the  right  on  the  one  hand  or  of  the  obligation 
on  the  other  can  be  effected  except  as  the  result  of  a  plain  contract.  .  .  ."). 

Compare,  to  similar  effect,  Galveston,  etc..  By.  Co.  v.  Harrigan  (1903),  76  S.  W., 
452,  453  (Tex.  Civ.  App.).  [See  also  Gray,  Natttre  and  Sources  of  Law,  sec.  25: 
"Eight  is  correlative  to  duty;  where  there  is  no  duty  there  can  be  no  right."] 

32aStayton,  J.,  in  MeUinger  v.  City  of  Houston  (1887),  68  Tex.,  45,  3  S.  W., 
249,  253:  "A  right  has  been  well  defined  to  be  a  well-founded  claim,  and  a  well- 
founded  claim  means  nothing  more  nor  less  than  a  claim  recognized  or  secured  by 
law. ' ' 

33  (1883)  8  App.  Cas.,  at  p.  597. 


AS  APPLIED  IX  JUDICIAL  REASOXINO  39 

of  a  "no-right."  In  the  exaiui)l('  last  put,  whcn-as  X  lias  a  rif/ht  or 
claim  that  Y,  the  other  man,  should  stay  off  the  land,  he  himself  has 
the  privilege  of  entering  on  the  laud ;  or,  in  e(iuivalent  words,  X  does 
not  have  a  duty  to  stay  off.  The  privilege  of  entering  is  the  negation 
of  a  duty  to  stay  off.  As  indicated  by  this  case,  some  caution  is 
necessary  at  this  point ;  for,  always,  when  it  is  said  that  a  given 
privilege  is  the  mere  negation  of  a  duty,  what  is  meant,  of  course,  is  a 
duty  having  a  content  or  tenor  precisely  opposite  to  that  of  the 
privilege  in  question.  Thus,  if,  for  some  special  rca.son,  X  has  con- 
tracted with  Y  to  go  on  the  former's  own  land,  it  is  obvious  that  X 
has,  as  regards  Y,  both  the  privilege  of  entering  and  the  fluty  of  enter- 
ing. The  privilege  is  perfectly  consistent  with  this  sort  of  duty, — 
for  the  latter  is  of  the  same  content  or  tenor  as  the  privilege; — but 
it  still  holds  good  that,  as  regards  Y.  X's  privilege  of  entering  is  the 
precise  negation  of  a  duty  to  stay  off.  Similarly,  if  A  has  not  con- 
tracted with  B  to  perform  certain  work  for  the  latter.  A's  privilege 
of  not  doing  so  is  the  very  negation  of  a  duty  of  doing  so.  Here 
again  the  duty  contrasted  is  of  a  content  or  tenor  exactly  opposite  to 
that  of  the  privilege. 

Passing  now  to  the  question  of  "correlatives."  it  will  l>e  remem- 
bered, of  course,  that  a  duty  is  the  invariable  correlative  of  that  legal 
relation  which  is  most  properly  called  a  right  or  claim.  That  Ix'ing 
so,  if  further  evidence  be  needed  as  to  the  fundamental  and  impor- 
tant difference  between  a  right  (or  claim)  and  a  privilege,  surely  it  is 
found  in  the  fact  that  the  correlative  of  the  latter  relation  is  a  "no- 
right,"  there  being  no  single  term  available  to  express  the  latter  con- 
ception. Thus,  the  correlative  of  X's  right  that  Y  shall  not  enter  on 
the  land  is  Y's  duty  not  to  enter;  but  the  correlative  of  X's  privilege 
of  entering  himself  is  manifestly  Y's  "no-right"  that  X  shall  not 
enter. 

In  view  of  the  considerations  thus  far  emphasized,  the  importance 
of  keeping  the  conception  of  a  right  (or  claim)  and  the  conception 
of  a  privilege  quite  distinct  from  each  other  seems  evident ;  and, 
more  than  that,  it  is  equally  clear  that  there  should  be  a  separate  term 
to  represent  the  latter  relation.  No  doul)t.  as  already  indicated,  it  is 
very  common  to  use  the  term  "right"  indiscriminately,  even  when 
the  relation  designated  is  really  that  of  privilege  \^*  and  only  too  often 

34  For  merely  a  few  out  of  mimberlcss  .iiuiicial  instances  of  this  loose  usage, 
see  Pearce  v.  Scotcher  (1882),  L.  R.  9  Q.  B..  ]r>2.  167;  Quinn  v.  Lcathfm  [1901] 
A.  C,  495  (passim);  JUen  v.  Flood  [1898]  A.  C,  1  (passim) ;  LindU-tj  v.  Sat. 
Carbonic  Acid  Gas  Co.  (1910),  220  U.  S.,  61,  75;  Smith  v.  Cornell  Univ.  (1894), 
45  N.  Y.  Supp.,  640,  643;  Fannnn  v.  Kcn\  Valley  Bk.  (1910),  107  Pac,  568.     [For 


40  FUNDAMENTAL  LEGAL  CONCEPTIONS 

this  identity  of  terms  has  involved  for  the  particular  speaker  or  writer 
a  confusion  or  blurring  of  ideas.  Good  instances  of  this  may  be 
found  even  in  unexpected  places.  Thus  Professor  Holland,  in  his 
Avork  on  Jurisprudence,  referring  to  a  different  and  well-known  sort 
of  ambiguity  inherent  in  the  Latin  "I us,"  the  German  "Recht,"  the 
Italian  "Diritto,"  and  the  French  "Droit," — terms  used  to  express 
"not  only  'a  right,'  but  also  'Law'  in  the  abstract," — very  aptly 
observes : 

"If  the  expression  of  widely  different  ideas  by  one  and  the  same 
term  resulted  only  in  the  necessity  for  .  .  .  clumsy  paraphrases,  or 
obviously  inaccurate  paraphrases,  no  great  harm  would  be  done;  but 
unfortunately  the  identity  of  terms  seems  irresistibly  to  suggest  an 
identity  between  the  ideas  expressed  by  them."^^ 

Curiously  enough,  however,  in  the  very  chapter  where  this  appears, 
— the  chapter  on  ' '  Rights, ' ' — the  notions  of  right,  privilege  and  power 
seem  to  be  blended,  and  that,  too,  although  the  learned  author  states 
that  "the  correlative  of  .  .  .  legal  right  is  legal  duty,"  and  that 
"these  pairs  of  terms  express  ...  in  each  case  the  same  state  of 
facts  viewed  from  opposite  sides."  While  the  whole  chapter  must  be 
read  in  order  to  appreciate  the  seriousness  of  this  lack  of  discrimina- 
tion, a  single  passage  must  suffice  by  way  of  example : 

"  If  .  .  .  the  power  of  the  State  will  protect  him  in  so  carrying  out 
his  wishes,  and  will  compel  such  acts  or  forbearances  on  the  part  of 
other  people  as  may  be  necessary  in  order  that  his  wishes  may  be  so 
carried  out,  then  he  has  a  'legal  right'  so  to  carry  out  his  wishes."'^ 

The  first  part  of  this  passage  suggests  privileges,  the  middle  part 
rights  (or  claims),  and  the  last  part  privileges.^*"^ 

Similar  difficulties  seem  to  exist  in  Professor  Gray's  able  and  enter- 
taining work  on  The  Nature  and  Sources  of  Law.  In  his  chapter  on 
"Legal  Rights  and  Duties"  the  distinguished  author  takes  the  position 
that  a  right  always  has  a  duty  as  its  correlative;^^  and  he  seems  to 

a  striking  instance  of  this  blurring  of  ideas,  see  Avery,  J.,  in  State  v.  Austin 
(1894),  114  N.  C,  855,  862:  "An  individual  right  is  that  which  a  person  is  entitled 
to  have  or  receive  from  others,  or  to  do  under  the  protection  of  law."  See  also 
Channel,  J.,  in  Starey  v.  Graham  [1899]  1  Q.  B.,  406,  411.]  See  also  vost,  n.  38. 
s^  Elements  of  Jurisprudence  (10th  ed.),  83. 

36  md.,  82. 

36aCompare  also  Holland,  Jurisprudence  (10th  ed.),  139:  "The  owner  of  a 
garden  has  a  right  to  its  exclusive  enjoyment  available  against  no  individual  more 
than  another,  but  against  everybody";  also  (page  163):  "Eights  to  personal 
safety  and  freedom,  .  .  .  limited  ...  by  the  right  of  parents  and  guardian^  to 
chastise  and  keep  in  custody  persons  of  tender  age."  The  confusion  continues 
throughout  the  discussion.     See  pp.  185,  200,  316,  and  n.  30,  page  200. 

37  See  Nature  and  Sources  of  Law  (1909),  sees.  25,  45,  184. 


AS  Al'I'LIKI)   IN  .iriUCIAL  REAS(>NlNr,  41 

define  the  former  ftliition  sul)st;iiiti;illy  accordiii^r  I"  tlie  iiiori-  limited 
meaning  of  "claim."  Lef;al  privilej^es.  powers,  and  immunities  are 
prima  fac'u  ignored,  and  the  impression  conveyed  that  all  legal  nda- 
tions  can  be  comprehended  under  the  conceptions  "right"  and 
"duty."  But,  with  the  greatest  hesitation  and  deference,  the  sug- 
gestion may  be  ventured  that  a  nund)er  of  his  examples  seem  to  show 
the  inade(iuacy  of  such  mode  of  treatment.    Thus,  e.g.,  he  says : 

"The  eating  of  shrimp  salad  is  an  interest  of  mine,  and.  if  I  can 
pay  for  it,  the  law  will  protect  that  interest,  and  it  is  therefore  a 
right  of  mine  to  eat  shrimp  salad  which  I  have  paid  for,  although  I 
know  that  shrimp  salad  always  gives  me  the  colic."-"* 

This  passage  seems  to  suggest  primarily  two  classes  of  relations: 
frst,  the  party's  respective  privileges,  as  against  A,  H,  (\  1)  an<l  others 
in  relation  to  eating  the  salad,  or,  correlatively,  the  res[)ective  "no- 
rights"  of  A,  B,  C,  I)  and  others  that  the  party  should  not  eat  the 
salad;  second,  the  party's  respective  rights  (or  claims)  as  against 
A,  B,  C,  1)  and  others  that  they  should  not  interfere  with  the  physical 
act  of  eating  the  salad,  or,  correlatively,  the  respective  duties  of  A,  B, 
C,  D  and  others  that  they  should  not  interfere. 

These  two  groups  of  relations  seem  perfectly  distinct ;  and  the 
privileges  could,  in  a  given  case,  exist  even  though  the  rights  men- 
tioned did  not.  A,  B,  C  and  D.  being  the  owners  of  the  salad,  might 
say  to  X:  "Eat  the  salad,  if  you  can:  you  have  our  license  to  do  so, 
hut  we  don't  agree  not  to  interfere  with  you."  In  such  a  ca.se  the 
privileges  exist,  so  that  if  X  succeeds  in  eating  the  salad,  he  has 
violated  no  rights  of  any  of  the  parties.  But  it  is  ecpially  clear  that 
if  A  had  succeeded  in  holding  so  fast  to  the  dish  tiiat  X  couldn't  eat 
the  contents,  no  right  of  X  would  have  been  violated.^" 

3s  Nature  and  Sources  of  Law  (1909),  sec.  48. 

smother  instances  in  Professor  Gray's  work  may  be  noteil.  In  sec.  5.'l  he  says: 
"So  again,  a  householder  has  the  right  to  eject  by  force  a  trespasser  from  his 
'castle.'  That  is,  if  sued  by  the  trespasser  for  an  assault,  he  can  call  upon  the 
court  to  refuse  the  plaintiff  its  help.  In  other  words,  a  man  's  legal  rights  include 
not  only  the  jtower  effectually  to  call  for  aid  from  an  organized  society  against 
another,  but  also  the  [lower  to  call  offe<'tually  upon  the  society  to  abstain  fron> 
aiding  others. " 

This,  it  is  respectfully  submitted,  seems  to  confuse  the  householder's  privilege 
of  ejecting  the  trespasser  (and  the  "no-right"  of  the  latter)  with  a  complex  of 
potential  rights,  privileges,  powers  and  iiiununities  relating  to  the  supposed  action 
at  law. 

In  sec.  10:2  the  sanie  Icarnetl  author  says:  "If  there  is  an  ordinance  that  the 
town  constable  may  kill  all  dogs  without  collars,  the  constable  may  have  a  legiil 
right  to  kill  such  dogs,  but  the  dogs  are  not  under  a  legal  duty  to  wear  collars." 

It  would  seem,  however,  that  what  the  ordinance  did  was  to  create  a  privilege — 


42  FUNDAMENTAL  LEGAL  CONCEPTIONS 

Perhaps  the  essential  character  and  importance  of  the  distinction 
can  be  showTi  by  a  slight  variation  of  the  facts.  Suppose  that  X,  being 
already  the  legal  owner  of  the  salad,  contracts  with  Y  that  he  (X) 
will  never  eat  this  particular  food.  With  A,  B,  C,  D  and  others  no 
such  contract  has  been  made.  One  of  the  relations  now  existing 
between  X  and  Y  is,  as  a  consequence,  fundamentally  different  from 
the  relation  between  X  and  A.  As  regards  Y,  X  has  no  privilege  of 
eating  the  salad ;  but  as  regards  either  A  or  any  of  the  others,  X  has 
such  a  privilege.  It  is  to  be  observed  incidentally  that  X's  right  that 
Y  should  not  eat  the  food  persists  even  though  X's  own  privilege  of 
doing  so  has  been  extinguished.*" 

On  grounds  already  emphasized,  it  would  seem  that  the  line  of 
reasoning  pursued  by  Lord  Lindley  in  the  great  case  of  Quinn  v. 
Leathem^'^  is  deserving  of  comment : 

"The  plaintiff  had  the  ordinary  rights  of  the  British  subject.  He 
was  at  liberty  to  earn  his  living  in  his  own  w^ay,  provided  he  did  not 
violate  some  special  law  prohibiting  him  from  so  doing,  and  provided 
he  did  not  infringe  the  rights  of  other  people.  This  liberty  involved 
the  liberty  to  deal  with  other  persons  who  were  willing  to  deal  with 
him.  This  liberty  is  a  right  recognized  by  law;  its  correlative  is  the 
general  duty  of  every  one  not  to  prevent  the  free  exercise  of  this 
liberty  except  so  far  as  his  own  liberty  of  action  may  justify  him  in 
so  doing.  But  a  person's  liberty  or  right  to  deal  with  others  is  nuga- 
tory unless  they  are  at  liberty  to  deal  with  him  if  they  choose  to  do  so. 
Any  interference  with  their  liberty  to  deal  with  him  affects  him." 

A  "liberty"  considered  as  a  legal  relation  (or  "right"  in  the  loose 
and  generic  sense  of  that  term)  must  mean,  if  it  have  any  definite 
content  at  all,  precisely  the  same  thing  as  privilege;*^  and  certainly 

the  absence  of  the  duty  not  to  kill  which  otherwise  would  have  existed  in  favor  of 
the  owner  of  the  dog.  Moreover,  that  appears  to  be  the  most  natural  connotation 
of  the  passage.  The  latter  doesn't,  except  very  remotely,  call  up  the  idea  of  the 
constable 's  accompanying  rights  against  all  others  that  they  shouldn  't  interfere 
with  his  actual  killing  of  the  dog. 

See  also  sees.  145,  186. 

[Compare  the  following  passage  from  Holmes,  The  Common  Laiv,  214:  "A 
legal  right  is  nothing  but  a  permission  to  exercise  certain  natural  powers,  and  upon 
certain  conditions  to  obtain  protection,  restitution,  or  compensation  by  the  aid  of 
the  public  force."] 

40  It  may  be  noted  incidentally  that  a  statute  depriving  a  party  of  privileges  as 
such  may  raise  serious  constitutional  questions  under  the  Fourteenth  Amendment. 
Compare,  e.g.,  Lindley  v.  Nat.  Carbonic  Gas  Co.  (1910),  220  U.  S.,  61.  [See  also 
Bideout  v.  Knox  (1889),  148  Mass.,  368  (holding  constitutional  a  statute  limiting 
a  landowner's  privilege  of  erecting  "spite-fences").] 

41  [1901]  A.  C,  495,  534. 

42  See  post,  pp.  44-50. 


AS  AI'I'LIKI)    IN   .iri)l(IAL  IJKASi  )NI  NC  43 

that  is  the  fair  coiinotatinii  of  tlif  tcnii  as  used  tin-  lirsl  three  times 
in  the  passage  quoted.  It  is  ciually  ele;ir.  as  iili-eiidy  iiidicated.  that 
such  a  privilege  or  liberty  to  deal  with  others  at  will  inight  very  eon- 
ceivably  exist  without  any  peeuliar  eoneoniitaiit  rights  against  "third 
parties"  as  regards  certain  kinds  of  interference.*'  ^Vhether  there 
should  be  such  concomitant  rights  (or  elaims)  is  ultimately  a  (jues- 
tion  of  justice  and  policy;  and  it  should  be  considered,  as  such,  on  its 
merits.  The  only  correlative  logically  implied  by  the  privileges  or 
liberties  in  question  are  the  "no-rights"  of  '•third  parties."  It  would 
therefore  be  a  non  sequifur  to  conclude  from  the  mere  existenee  of 
such  liberties  that  "third  parties"  an-  umler  a  '/(////  not  to  interfere, 
etc.  Yet  in  the  middle  of  the  above  i)assage  from  Lord  Lindley's 
opinion  there  is  a  sudden  and  <|uestion-begging  shift  in  the  use  of 
terms.  First,  tlie  "liberty"  in  question  is  transnnited  into  a  "right"; 
and  then,  possibly  under  the  seductive  influence  of  the  latter  word, 
it  is  assumed  that  the  "correlative"  nuist  be  "the  general  duty  of 
every  one  not  to  prevent,"  etc.*'"' 

Another  interesting  and  instructive  example  may  be  taken  from 
Lord  Bowen's  oft-cjuoted  opinion  in  Mfxjul  Sf(<nuship  Cn.  v. 
McGregor.'^* 

"We  are  presented  in  this  case  with  an  apparent  conflict  or  antin- 
omy between  two  rights  that  are  ecpially  regarded  by  the  law — the 
right  of  the  plaintiffs  to  be  protected  in  the  legitimate  exercise  of 
their  trade,  and  the  right  of  the  defendants  to  carry  on  their  business 
as  seems  best  to  them,  provided  they  commit  no  wrong  to  others."*" 

As  the  learned  judge  states,  the  conflict  or  antinomy  is  only  appar- 
ent; ])ut  this  fact  seems  to  be  obscured  by  the  very  indefinite  and 
rapidly  shifting  meanings  with  which  the  term  "i-iglit"  is  used  in 
the  above  quoted  language.  Construing  the  passage  as  a  whole,  it 
seems  plain  enough  that  by  "the  right  of  the  plaintiffs"  in  relation 
to  the  defendants  a  legal  right  or  claim  in  the  strict  sense  nnist  be 
meant;  whereas  by  "the  right  of  the  defendants"  in  relation  to  the 
plaintiffs  a  legal  privilege  must  be  intended.  That  being  so.  the  "two 
rights"  mentioned  in  the  beginning  of  the  passage,  being  respectively 
claim  and  privilege,  could  not  be  in  conflict  with  each  other.  To  the 
extent  that  the  defendants  have  privileges  the  plaintiffs  have  no 
rights;  and,  conversely,  to  the  extent  that  the  plaintiffs  have  rights 

"Compare  Allen  v.  Flood  [1898]  A.  C,  1. 

43a  For  a  more  accurate  treatment  of  the  conception  of  "liberty"  and  "right," 
see  the  discussion  by  Cave,  .T.,  quoted  infra,  jip.  -JT^H. 

^4  (18S9)  23  Q.  B.  P..  T)!!. 

^■'a  Compare  the  similar  (inaccurate)  use  of  the  exjirossion.  "ponfltctinR  righta," 
by  Holmes,  .1.,  in  Bo.ston  Ferrule  Co.  v.  llUh  (18M),  159  Maw.,  147,  149-1.50, 


44  FUNDAMENTAL  LEGAL  CONCEPTIONS 

the  defendants  have  no  privileges  ("no-privilege"  equals  dnty  of 
opposite  tenor). •'^ 

Thus  far  it  has  been  assumed  that  the  term  "privilege"  is  the  most 
appropriate  and  satisfactory  to  designate  the  mere  negation  of  duty. 
Is  there  good  warrant  for  this? 

In  Mackeldey  's  Roman  Law^*^  it  is  said : 

"Positive  laws  either  contain  general  principles  embodied  in  the 
rules  of  law  ...  or  for  especial  reasons  they  establish  something  that 
differs  from  those  general  principles.  In  the  first  case  they  contain 
a  common  law  {jus  commune),  in  the  second  a  special  law  {jus  singu- 
lare  s.  exorhitans).  The  latter  is  either  favorable  or  unfavorable  .  .  . 
according  as  it  enlarges  or  restricts,  in  opposition  to  the  common  rule, 
the  rights  of  those  for  whom  it  is  established.  The  favorable  special 
law  {jus  singulare)  as  also  the  right  created  by  it  .  .  .  in  the  Roman 
law  is  termed  benefit  of  the  law  {heneficium  juris)  or  privilege  {privi- 
legium)   .   .   .   "" 

First  a  special  law,  and  then  by  association  of  ideas,  a  special  ad- 
vantage conferred  by  such  a  law.  With  such  antecedents,  it  is  not 
surprising  that  the  English  word  "privilege"  is  not  infrequently 
used,  even  at  the  present  time,  in  the  sense  of  a  special  or  peculiar 
legal  advantage  (whether  right,  privilege,  power  or  immunity)  belong- 

45  Cases  almost  without  number  might  be  cited  to  exemplify  similar  blending 
of  fundamental  conceptions  and  rapid  shifting  in  the  use  of  terms; — and  that, 
too,  even  when  the  problems  involved  have  been  such  as  to  invite  close  and  care- 
ful reasoning.  For  a  few  important  cases  of  this  character,  see  Allen  v.  Flood 
[1898]  A.  C,  1  (Hawkins,  J.,  p.  16:  "I  know  it  may  be  asked,  'What  is  the 
legal  right  of  the  plaintiffs  which  is  said  to  have  been  invaded?'  My  answer  is, 
that  right  which  should  never  be  lost  sight  of,  and  which  I  have  already  stated — 
the  right  freely  to  pursue  their  lawful  calling;"  Lord  Halsbury,  p.  84:  "To  dig 
into  one's  own  land  under  the  circumstances  stated  requires  no  cause  or  excuse. 
He  may  act  from  mere  caprice,  but  his  right  on  his  own  land  is  absolute,  so  long 
as  he  does  not  interfere  with  the  rights  of  others;"  Lord  Ashbourne,  p.  112: 
"The  plaintiffs  had,  in  my  opinion,  a  clear  right  to  pursue  their  lawful  calling. 
...  It  would  be,  I  think,  an  unsatisfactory  state  of  the  law  that  allowed  the  wilful 
invader  of  such  a  right  without  lawful  leave  or  justification  to  escape  from  the 
consequences  of  his  action.");  Quinn  v.  Leathern  [1901]  A.  C,  495,  533:  Lindsley 
V.  Natural  Carbonic  Gas  Co.  (1910),  220  U.  S.,  61,  74;  Boberson  v.  Bochester 
Folding  Box  Co.  (1902),  171  N.  Y.,  538  (Parker,  C.  J.,  p.  544:  "The  so-called 
right  of  privacy  is,  as  the  phrase  suggests,  founded  upon  the  claim  that  a  man  has 
the  right  to  pass  through  this  world,  if  he  wills,  without  having  his  picture  pub- 
lished.") ;  Wabash,  St.  L.  4~  P.  B.  Co.  v.  ShacMet  (1883),  105  111.,  364,  389.  [In 
his  opinion  in  Attorney  General  v.  Adelaide  Steamship  Co.  [1913]  A.  C,  781, 
793,  Lord  Parker  of  Waddington  is  guilty  of  the  fallacy  of  supposing  that  duty 
is  the  correlative  of  privilege.  He  says:  "At  common  law  every  member  of  the 
community  is  entitled  to  carry  on  any  trade  or  business  as  he  chooses  and  in  such 
manner  as  he  thinks  most  desirable  in  his  own  interests,  and  inasmuch  as  every 
right  connotes  an  obligation  no  one  can  lawfully  interfere  with  another  in  the 


AS  APPLIED  IX  JUDICIAL  REASOXIXG  45 

ing  either  to  some  individual  or  to  some  particular  class  of  persons.*' 
There  are,  indeed,  a  nuniher  of  judicial  opinions  recognizing  this  as 
one  of  the  meanings  of  the  term  in  «|U('Stion.'^'-'  That  the  word  has  a 
wider  signification  even  in  ordinary  non-technical  usage  is  sufficiently 
indicated,  however,  by  the  fact  that  the  term  "special  privileges"  is 
so  often  used  to  indicate  a  contrast  to  ordinai-y  or  general  privileges. 
jMore  than  this,  the  dominant  specific  connotation  of  the  term  as  u.sed 
in  popular  speech  seems  to  be  mere  negation  of  duty.  This  is  manifest 
in  tlie  terse  and  oft-repeated  expression,  ''That  is  your  privilege," — 
meaning,  of  course,  "You  are  under  no  duty  to  do  otherwi.se." 

Such  being  the  case,  it  is  not  surprising  to  find,  from  a  wide  survey 
of  judicial  precedents,  that  the  dominant  technical  meaning  of  the 
term  is,  similarly,   negation  of  legal   dnt}i.'"     Tliere   .-ire   two   very 


free  exercise  of  his  trade  or  Inisiness  unless  there  ex!.«t  smiie  just  cause  or  excuse 
for  such  interference."] 

In  Furdy  v.  Staie  (1901),  4.3  Fla.,  5.3s,  540,  the  anomalous  expression  "right 
of  privilege"  is  employed. 

«  (Dropsie  Tr.)  sees.  196-197. 

••'The  same  matter  is  put  somewhat  less  clearly  in  Sohm 's  Itistitutcs  (Ledlie's 
Tr.,  3d  ed.),  28. 

See  also  Hector,  etc.,  of  Christ  Church  v.  Philadelphia  (1860),  24  TIow..  300, 
301,  302. 

48  According  to  an  older  usage,  the  term  "privilege"  was  frequently  employed 
to  indicate  a  "franchise,"  the  latter  being  really  a  miscellaneous  complex  of 
special  rights,  privileges,  powers,  or  immunities,  etc.  Thus,  in  an  early  book, 
Termes  de  la  Lei/,  there  is  the  following  definition:  "  'Privileges'  are  liberties 
and  franchises  granted  to  an  office,  place,  towne,  or  manor  by  the  King's  great 
charter,  letters  patent,  or  Act  of  Parliament,  as  toll,  sake,  socke,  infangstheefe, 
outfangstheefe,  turne,  or  delfe,  and  divers  such  like. ' ' 

Compare  Blades  v.  Higgs  (1865),  11  H.  L.  Cas.,  621,  631,  per  Lord  Westbury: 
"Property  ratione  privilegii  is  the  right  which  by  a  peculiar  franchise  anciently 
granted  by  the  Crown,  by  virtue  of  prerogative,  one  may  have  of  talking  animals 
ferae  naturae  on  the  land  of  another;  and  in  like  manner  the  game  when  taken 
by  virtue  of  the  privilege  liecomes  the  al»solute  i)roperty  of  the  owner  of  the 
franchise. ' ' 

49  See  Humphren  v.  Pegues  (1872),  16  Wall.,  244,  247.  per  Hunt.  .T.:  "All  the 
'privileges'  as  well  as  powers  and  rights  of  the  prior  <'ompany  were  granted  to  the 
latter.  A  more  important  or  more  comprehensive  privilege  than  a  per|>etual 
immunity  from  taxation  can  scarcely  be  imagined.  It  contains  the  e».''ential  idea 
of  a  peculiar  benefit  or  advantage,  of  a  special  exemption  from  a  burden  falling 
upon  others. ' ' 

See  also  Smith  v.  Floyd  (1893),  140  N.  Y..  3.*'.7.  342;  Lonas  v.  State  (1871). 
3  Heisk.,  287,  306,  307;  Territory  v.  Stohcx  (1S81),  2  X.  M..  161.  169.  170;  Ripley 
V.  Knight  (1878),  123  Mass.,  515,  519;  Dike  v.  State  (1888),  38  Minn.,  366;  Re 
Miller  [1893]   1  Q.  B.,  327. 

Compare  WtJieiier  v.  Burrell  (1911),  28  Okla.,  546. 

50  Compare  Louisville  rf-  N.  E.  Co.  v.  Gaines  (1880),  3  Fed,  Rep.,  266.  278,  per 


46  FUNDAMENTAL  LEGAL  CONCEPTIONS 

common  examples  of  this,  relating  respectively  to  "privileged  com- 
munications" in  the  laAv  of  libel  and  to  "privileges  against  self- 
crimination"  in  the  law  of  evidence.  As  regards  the  first  case,  it  is 
elementary  that  if  a  certain  gronp  of  operative  facts  are  present,  a 
privilege  exists  which,  without  such  facts,  would  not  be  recognized.^^ 
It  is,  of  course,  equally  clear  that  even  though  all  such  facts  be  present 
as  last  supposed,  the  superadded  fact  of  malice  will,  in  cases  of  so- 
called  "conditional  privilege,"  negative  the  privilege  that  otherwise 
would  exist.  It  must  be  evident  also,  that  whenever  the  privilege 
does  exist,  it  is  not  special  in  the  sense  of  arising  from  a  special  law, 
or  of  being  conferred  as  a  special  favor  on  a  particular  individual. 
The  same  privilege  would  exist,  by  virtue  of  general  rules,  for  any 
person  whatever  under  similar  circumstances.  So.  also,  in  the  laAv  of 
evidence,  the  privilege  against  self-crimination  signifies  the  mere  nega- 
tion of  a  duty  to  testify, — a  duty  which  rests  upon  a  witness  in  rela- 
tion to  all  ordinary  matters ;  and,  quite  obviously,  such  privilege  arises, 
if  at  all,  only  by  virtue  of  general  laws.^- 

As  already  intimated,  while  both  the  conception  and  the  term 
"privilege"  find  conspicuous  exemplification  under  the  law  of  libel 
and  the  law  of  evidence,  they  nevertheless  have  a  much  wider  signifi- 
cance and  utility  as  a  matter  of  judicial  usage.  To  make  this  clear, 
a  few  miscellaneous  judicial  precedents  will  now  be  noticed.  In  Dow- 
man's  Case,^^  decided  in  the  year  1583,  and  reported  by  Coke,  the 
court  applied  the  term  to  the  subject  of  waste : 

"And  as  to  the  objection  which  was  made,  that  the  said  privilege 
to  be  without  impeachment  of  waste  can  not  be  ^\^thout  deed,  etc.  To 
that  it  was  answered  and  resolved,  that  if  it  was  admitted  that  a  deed 

Baxter,  Asso.  J.:  "Paschal  says  (the  term  privilege)  is  a  special  right  belonging 
to  an  individual  or  class;  properly,  an  exemption  from  some  duty." 

51  For  apt  use  of  terms  ' '  privilege ' '  and  ' '  privileged ' '  in  relation  to  libel,  see 
Hawkins,  J.,  in  Allen  v.  Flood  [1898]  A.  C,  1,  20-21. 

52  As  regards  the  general  duty  to  testify,  specific  performance  may  usually  be 
had  under  duress  of  potential  or  actual  contempt  proceedings;  and,  apart  from 
that,  failure  to  testify  might  subject  the  wrongdoer  either  to  a  statutory  liability 
for  a  penalty  in  favor  of  the  injured  party  litigant  or,  in  case  of  actual  damage, 
to  a  common-law  action  on  the  case.  ) 

The  subject  of  witnesses  is  usually  thought  of  as  a  branch  of  the  so-called 
adjective  law,  as  distinguished  from  the  so-called  i^uistantive  law.  But,  as  the 
writer  has  had  occasion  to  emphasize  on  another  occasion  {The  Eelations  'between 
Equity  and  Law,  11  Michigan  Law  Keview,  537,  5.54,  556,  569),  there  seems  to  be 
no  intrinsic  or  essential  difference  between  those  jural  relations  that  relate  to  the 
* '  substantive ' '  law  and  those  that  relate  to  the  ' '  adjective ' '  law.  This  matter 
will  be  considered  more  fully  in  a  later  part  of  the  discussion. 

53  (1583)  9  Coke,  1. 


AS  APPLIED  IX  JUDICIAL  REASONING  47 

in  such  case  should  be  rerjuisite,  yet  without  (juestiou  all  the  estates 
limited  would  be  good,  although  it  is  admitted,  that  the  clause  con- 
cerning the  said  privilege  would  be  void." 

In  the  great  case  of  AU<:n  v.  Flood'"*  the  o{)inion  of  Mr.  Justice 
Hawkins  furnishes  a  useful  passage  for  the  purpose  now  in  view : 

"Every  pei'son  has  a  privilege  ...  in  the  interests  of  publie  justiee 
to  put  the  eriminal  law  in  motion  against  another  whom  he  bona  fuh , 
and  upon  reasonable  and  probable  cause,  believes  to  have  l)een  guilty 
of  a  crime.  ...  It  must  not,  however,  be  supposed  that  luitred  and 
ill-will  existing  in  the  mind  of  a  prosecutor  nuist  of  necessity  destroy 
the  privilege,  for  it  is  not  impossible  that  such  hatred  and  ill-will  may 
have  very  natural  and  pardonable  reasons  for  existing.  ..." 

Applying  the  term  in  relation  to  the  subject  of  property,  Mr.  Justice 
Foster,  of  the  Supreme  Court  of  Elaine,  said  in  the  case  of  Vulitztr  v. 
Livingston  :^^ 

"It  is  contrary  to  the  policy  of  the  law  that  there  should  be  any 
outstanding  titles,  estates,  or  powers,  l)y  the  existence,  operation  or 
exercise  of  which,  at  a  period  of  time  beyond  lives  in  being  and 
twenty-one  years  and  a  fraction  thereafter,  the  complete  and  un- 
fettered enjoyment  of  an  estate,  with  all  the  rights,  privileges  and 
powers  incident  to  ownership,  should  be  qualified  or  impeded." 

As  a  final  example  in  the  present  connection,  the  language  of  Baron 
Alderson  in  Hilton  v.  Eckerlci/''^  may  be  noticed : 

"Prima  facie  it  is  the  privilege  of  a  trader  in  a  free  country,  in  all 
matters  not  contrary  to  law,  to  regulate  his  own  mode  of  carrying 
them  on  according  to  his  discretion  and  choice."'' 

The  closest  synonym  of  legal  "privilege"  seems  to  be  legal  "liberty" 
or  legal  " freedom.  "^'^  This  is  sufficiently  indicated  by  an  unu.sually 
discriminating  and  instructive  passage  in  i\Ir.  Justice  Cave's  opinion 
in  Allen  v.  Floodr'^ 


54  [1898]  A.  C.  1,  19. 

55  (1896)  89  Me.,  359. 

56  (1856)  6  E.  &  B.,  47,  74. 

57  For  other  examples  of  apt  use  of  the  t^rm  in  question,  see  Borland  r.  Bonton 
(1882),  132  Mass.,  89  ("municipal  rights,  privileges,  powers  or  duties")  ;  Ilamil- 
ton  V.  Graham  (1871),  L.  R.  2  H.  L.  (So.),  167,  169,  per  Hatherley.  L.  C;  Jonrs 
V.  Be  Moss  (1911),  151  la.,  112,  117;  Kripp  v.  Curtis  (1SS6),  71  Cal..  62.  63; 
Lamar  v.  Booth  (1874),  .50  Miss.,  411,  413;  Wellrr  v.  Browu  (1911).  160  Cal., 
515;  117  Pac,  517;  ^r^theu■s  v.  Fcopir  (1903).  202  Til..  389.  401;  Ahintjton  v. 
North  Bridgewater  (1840),  23  Pick..  170.  \nuvtlrn  r.  Gnskrll  [1906]  A.  C,  56. 
57  ("rights,  privileges  and  immunities")  ;  Aikcits  v.  Wi.sconsin  (.1904).  195  T'.  S.. 
194,  206  (Holmes,  J.:  "No  conduct  has  such  an  absolute  privilege  as  to  justify  all 
possible  schemes  of  which  it  may  be  a  part").] 

57a  Compare  the  expression:  "Freedom  of  speech." 

58  [1898]  A.  C,  1,  29. 


48  FUNDAMENTAL  LEGAL  CONCEPTIONS 

"The  personal  rights  with  which  we  are  most  familiar  are :  1.  Rights 
of  reputation;  2.  Rights  of  bodily  safety  and  freedom;  3.  Rights  of 
property;  or,  in  other  words,  rights  relating  to  mind,  body  and 
estate,  .    .    . 

' '  In  my  subsequent  remarks  the  word  '  right '  will,  as  far  as  possible, 
always  be  used  in  the  above  sense;  and  it  is  the  more  necessary  to 
insist  on  this  as  during  the  argument  at  your  Lordship's  bar  it  was 
frequently  used  in  a  much  wider  and  more  indefinite  sense.  Thus  it 
was  said  that  a  man  has  a  perfect  right  to  fire  off  a  gun,  when  all  that 
was  meant,  apparently,  was  that  a  man  has  a  freedom  or  liberty  to 
fire  off  a  gun,  so  long  as  he  does  not  violate  or  infringe  any  one 's  rights 
in  doing  so,  which  is  a  very  different  thing  from  a  right,  the  violation 
or  disturbance  of  which  can  be  remedied  or  prevented  by  legal 
process. '  '^^ 

While  there  are  numerous  other  instances  of  the  apt  use  of  the 
term  ''liberty,"  both  in  judicial  opinions*'^  and  in  conveyancing  docu- 

59  For  the  reference  to  Mr,  Justice  Cave 's  opinion,  the  present  writer  is  indebted 
to  Salmond's  work  on  Jurisprudence.  Citing  this  case  and  one  other,  Starey  v. 
Graham  [1889]  1  Q.  B.,  406,  411,  the  learned  author  adopts  and  uses  exclusively 
the  term  ' '  liberty ' '  to  indicate  the  opposite  of  ' '  duty, ' '  and  apparently  overlooks 
the  importance  of  privilege  in  the  present  connection.  Curiously  enough,  more- 
over, in  his  separate  Treatise  on  Torts,  his  discussion  of  the  law  of  defamation 
gives  no  explicit  intimation  that  privilege  in  relation  to  that  subject  represents 
merely  liberty,  or  "no-duty." 

Sir  Frederick  Pollock,  in  his  volume  on  Jurisprudence  (2d  ed.,  1904),  62,  seems 
in  effect  to  deny  that  legal  liberty  represents  any  true  legal  relation  as  such.  Thus, 
he  says,  inter  alia:  ' '  The  act  may  be  right  in  the  popular  and  rudimentary  sense  of 
not  being  forbidden,  but  freedom  has  not  the  character  of  legal  right  until  we 
consider  the  risk  of  unauthorized  interference.  It  is  the  duty  of  all  of  us  not  to 
interfere  with  our  neighbors'  lawful  freedom.  This  brings  the  so-called  primitive 
rights  into  the  sphere  of  legal  rule  and  protection.  Sometimes  it  is  thought  tlmt 
lawful  pouter  or  liierty  is  different  from  the  right  not  to  he  interfered  with;  hut 
for  the  reason  just  given  this  opinion,  though  plaxisible,  does  not  seem  correct." 
Compare  also  Pollock,  Essays  in  Jurisprudence  and  Ethics  (1882),  ch.  I. 

It  is  difiicult  to  see,  however,  why,  as  between  X  and  Y,  the  "privilege  +  no- 
right"  situation  is  not  just  as  real  a  jural  relation  as  the  precisely  opposite  "duty 
+  right"  relation  between  any  two  parties.  Perhaps  the  habit  of  recognizing 
exclusively  the  latter  as  a  jural  relation  springs  more  or  less  from  the  traditional 
tendency  to  think  of  the  law  as  consisting  of  "commands,"  or  imperative  rules. 
This,  however,  seems  fallacious.  A  rule  of  law  that  permits  is  just  as  real  as  a 
rule  of  law  that  forbids;  and,  similarly,  saying  that  the  law  permits  a  given  act 
to  X  as  between  himself  and  Y  predicates  just  as  genuine  a  legal  relation  as  saying 
that  the  law  forbids  a  certain  act  to  X  as  between  himself  and  Y.  That  this  is 
so  seems,  in  some  measure,  to  be  confirmed  by  the  fact  that  the  first  sort  of  act 
would  ordinarily  be  pronounced  ' '  lawful, ' '  and  the  second  * '  iinlawf ul. ' '  Compare 
Thomas  v.  Sorrel  (1673),  Vaughan,  331,  351,  quoted  post,  note  63. 

^0  Compare  Dotv  v.  Newborough  (1728),  Comyns,  242  ("For  the  use  is  only  a 
liberty  to  take  the  profits,  but  two  cannot  severally  take  the  profits  of  the  same 
land,  therefore  there  cannot  be  an  use  upon  a  use. ' '    It  should  be  observed  that  in 


AS  APPLIED  IN  JUDICIAL  REA^OMNG  49 

ments,''^  it  is  by  no  means  so  common  or  detinito  a  word  as  "privilege." 
The  former  term  is  far  more  likely  to  be  used  in  tlu-  sense  of  physical 
or  personal  freedom  (i.e.,  absence  of  piiysical  restraint ),  as  dis- 
tinguished from  a  legal  relation;  and  very  frciiuently  tlicre  is  the 
connotation  of  general  political  liberty,  as  distinguislwd  Irom  a  jiar- 
ticular  relation  between  two  detinite  individuals.  Hesiiles  all  this, 
the  term  "privilege"  has  the  advantage  of  giving  us,  as  a  variable, 
the  adjective  "privileged."  Thus,  it  is  fre(|uently  convenient  to 
speak  of  a  privileged  act,  a  privileged  transaction,  a  jn-ivileged 
conveyance,  etc. 

The  term  "license,"  sometimes  used  as  if  it  wtn-  .syiiouynious  with 
"privilege,"  is  not  strictly  appropriate.     This  is  simply  another  of 

this  and  the  next  case  to  be  cited,  alon;,^  with  the  lil)erty  or  privilege  there  are 
associated  powers  and  rights,  etc.:  for  instance,  the  poircr  to  acquire  a  title  to  the 
things  severed  from  the  realty);  Bourne  v.  Taiilor  (1808),  10  East,  189  (hlllen- 
borough,  C.  J.:  "The  second  question  is  whether  the  replication  ought  to  have 
traversed  the  liberty  of  working  the  mines.  .  .  .  The  word  liberty,  too,  implies 
the  same  thing.  It  imports,  ex  vi  termini,  that  it  is  a  privilege  to  be  exercised 
over  another  man's  estates")  ;  JVickham  v.  Ilatvkes  (1840),  7  M.  &  W.,  63,  78-79; 
Quinn  v.  Leathern  [1901]  A.  C,  495,  534  (per  Lord  Lindley)  ;  rollock  v.  Fanners' 
Loan  4-  Trust  Co.  (1895),  157  U.  S.,  429,  652  (per  White,  J.:  "rights  and  liber- 
ties") ;  Mathews  v.  People  (1903),  202  111.,  389,  401  (Magruder,  C.  J.:  "It  is  now 
well  settled  that  the  privilege  of  contracting  is  l<oth  a  liberty,  and  a  ]>roperty 
right").  [Ferris  v.  Frohmnn  (1911),  223  U.  S.,  424,  432  (Hughes,  J.:  "Gave  to 
authors  the  sole  liberty  of  printing  their  books");  AlUjciicr  v.  Louuiiana  (1^97), 
165  U.  S.,  578,  592  (Peckham,  J.:  "must  have  the  liberty  to  do  that  act  .  .  ."); 
Ail-ens  v.  Wisconsin  (1904),  195  U.  S.,  194,  205  (Holmes,  J.:  "It  would  be  impos- 
sible to  hold  that  the  liberty  to  combine  to  inflict  such  nii.s<'hicf  .  .  .  was  among 
the  rights  which  the  Fourteenth  Amendment  was  intended  to  preser%'e").] 

For  legislative  use  of  the  term  in  question,  see  the  Copyright  Act,  8  Anne 
(1709)  c.  19  ("Shall  have  the  sole  right  and  liberty  of  printing  each  book  and 
books  for  the  term  of  .  .  ."). 

Like  the  word  "privilege"  (see  ante,  i>.  45,  n.  4S").  the  form  "lilicrty"  is  occa- 
sionally used,  especially  in  the  older  books,  to  indicate  a  franchise,  or  complex  of 
special  rights,  privileges,  powers,  or  immunities.  Thus  in  Xoy's  ilnxinus  (1641) 
there  is  this  definition:  "Liberty  is  a  royal  privilege  in  the  hands  of  a  subject;" 
and,  similarly,  Blackstone  (2  Com.  37)  says:  "Franchise  and  liberty  are  used  as 
synonymous  terms;  and  their  definition  is,  a  royal  privilege,  or  branch  of  the  king's 
prerogative,  subsisting  in  the  hands  of  a  subject." 

This  definition  is  quoted  in  S.  F.  Watcrnprls  v.  ScJwttlcr  (1882),  62  Cal..  69, 
106,  and  Central  F.  4-  Banking  Co.  v.  State  (1875),  54  Ga.,  401,  409.  Compare 
also  Bex  v.  Halifax  4'  Co.  [1891]  2  Q.  B..  263. 

ci  Compare  Frond  v.  Bates  (1S65),  34  L.  .1.  (X.  S.),  406  ("With  full  power  and 
free  liberty  to  sink  for,  win  and  work  the  same,  with  all  liberties,  privileges,  etc., 
necessary  and  convenient,"  etc.);  Hamilton  v.  Graham  (1871'),  L.  R.  2  IT.  L.  (So.'). 
166,  167;  Attersoll  v.  Stevens  (1808),  1  Taunt.,  183;  Wivkham  v.  Hawker  (1840), 
7  M.  &  W.,  63,  78-79. 


50  FUNDAMENTAL  LEGAL  CONCEPTIONS 

ihose  innumera])le  cases  in  which  the  mental  and  physical  facts  are 
so  frequently  confused  with  the  legal  relation  which  they  create.*^^^ 
Accurately  used,  "license"  is  a  generic  term  to  indicate  a  group  of 
operative  facts  required  to  create  a  particular  privilege, — this  being 
especially  evident  when  the  word  is  used  in  the  common  phrase  "leave 
and  license. ' '  This  point  is  brought  out  by  a  passage  from  Mr.  Justice 
Adams's  opinion  in  Clifford  v.  O'Neill:^- 

"A  license  is  merely  a  permission  to  do  an  act  which,  witJiout  such 
permission,  would  amount  to  a  trespass  .  .  ."  nor  will  the  continuous 
enjoyment  of  the  privilege  conferred,  for  any  period  of  time  cause  it 
to  ripen  into  a  tangible  interest  in  the  land  affected. '  '^'^ 

Powers  and  Liahilities.  As  indicated  in  the  preliminary  scheme  of 
jural  relations,  a  legal  power  (as  distinguished,  of  course,  from  a 
mental  or  physical  power)  is  the  opposite  of  legal  disability,  and  the 
correlative  of  legal  liability.  But  what  is  the  intrinsic  nature  of  a 
legal  power  as  such?  Is  it  possible  to  analyze  the  conception  repre- 
sented by  this  constantly  employed  and  very  important  term  of  legal 
discourse?  Too  close  an  analysis  might  seem  metaphysical  rather 
than  useful;  so  that  what  is  here  presented  is  intended  only  as  an 
approximate  explanation,  sufficient  for  all  practical  purposes. 

A  change  in  a  given  legal  relation  may  result  (1)  from  some  super- 
added fact  or  group  of  facts  not  under  the  volitional  control  of  a 
human  being  (or  human  beings)  ;  or  (2)  from  some  superadded  fact 

61a  See,  for  example,  Lurton,  J.,  in  City  of  Owenshoro  v.  CumTjerland  Telephone, 
etc.,  Co.  (1913),  230  U.  S.,  58,  64;  33  Sup.  Ct.,  988,  990:  "That  the  right  con- 
ferred by  the  ordinance  involved  is  something  more  than  a  mere  license,  is  plain. 
A  license  has  been  generally  defined  as  a  mere  personal  privilege  to  do  acts  upon 
the  land  of  the  licensor  of  a  temporary  character,  and  revocable  at  the  will  of  the 
latter  unless,  according  to  some  authorities,  in  the  meantime  expenditures  con- 
templated by  the  licensor  when  the  license  was  given,  have  been  made. ' ' 

62  (1896)  12  App.  Div.,  17;  42  N.  Y.  Sup.,  607,  609. 

63  See,  in  accord,  the  oft-quoted  passage  from  Thomas  v.  Sorrell  (1673), 
Vaughan,  331,  351  ("A  dispensation  or  license  properly  passes  no  interest,  nor 
alters  or  transfers  property  in  anything,  but  only  makes  an  action  lawful,  which 
without  it  had  been  unlawful.  As  a  license  to  go  beyond  the  seas,  to  hunt  in  a 
man's  park,  to  come  into  his  house,  are  only  actions,  which  without  license,  had 
been  unlawful"). 

Compare  also  Taylor  v.  Waters  (1817),  7  Taunt.,  374,  384:  "Those  cases 
abundantly  prove  that  a  license  to  enjoy  a  beneficial  privilege  in  land  may  be 
granted,  and,  notwithstanding  the  statute  of  frauds,  without  writing. ' '  In  this 
case  the  license  (operative  facts)  is  more  or  less  confused  with  privileges  (the 
legal  relation  created)  ;  Heap  v.  Hartley  (1889),  42  Ch.  D,,  461,  470. 

[See  also  the  essay  on  Faulty  Analysis  in  Easement  and  License  Cases,  reprinted 
infra. — Ed.  ] 


AS  AITI.IKl)   IX  .HDK  lAL  HKASOXINO  51 

or  group  of  facts  which  art'  uikUt  the  volitional  control  of  one  or 
more  human  beings.  As  i-egai-ds  the  second  class  of  cases,  the  person 
(or  persons)  whose  volitional  control  is  j»aramount  may  be  said  to 
have  the  (legal)  power  to  effect  the  particular  change  of  legal  rela- 
tions that  is  involved  in  the  i)rol)leiii. 

This  second  class  of  cases — powers  in  the  teclniieal  sense — nmsl  now 
be  further  considered.  The  nearest  synonym  for  any  ordinary  ca.se 
seems  to  be  (legal)  "aliility. "'' — the  latter  being  o))viously  the  ojtpo- 
site  of  "inability,"  or  "disability."  The  term  ''right."  so  fretiuently 
and  loosely  used  in  the  present  connection,  is  an  unfortunate  term  for 
the  purpose, — a  not  unusual  result  being  confusion  of  thought  as  well 
as  ambiguity  of  expression.'"'^  The  term  "capacity"  is  equally  un- 
fortunate; for,  as  we  have  already  seen,  when  used  with  diserimina- 
tion,  this  word  denotes  a  i)articular  group  of  operative  facts,  and  not 
a  legal  relation  of  any  kind. 

Many  examples  of  legal  powers  may  readily  be  given.  Thus.  X.  the 
owner  of  ordinary  personal  pi-opcrty  "in  a  tangible  object"  has  the 
power  to  extinguish  his  own  legal  interest  (rights,  jiowers,  immunities, 
etc.)  through  that  totality  of  opei-ative  facts  known  as  abandonment; 
and — simultaneously  and  correlatively — to  ci-eate  in  othei-  j)ersons 
privileges  and  })0wers  relating  to  the  abandoned  object, — e.g..  the 
power  to  acquire  title  to  the  latter  by  appropi-iating  it.*"'  Siniilarhf, 
X  has  the  power  to  transfer  his  interest  to  Y. — that  is.  to  extinguish 
his  own  interest  and  concomitantly  create  in  V  a  new  and  correspond- 
ing interest.*^'     So  also  X  has  the  power  to  create  contractual  obliira- 

64  Compare  Eemington  v.  Parkins  (1S73).  in  R.  I.,  5.50,  553,  per  Diirfee.  J.: 
"A  power  is  an  ability  to  do." 

fis  See  People  v.  Dikcmo))  (1S52).  7  Howard  I'r.,  124,  i;?0;  and  Lvnas  v.  State 
(1871),  3  Heisk.   (Tenn.),  287,  306-307,  quoted  ante,  p.  37. 

See  also  Mahrc  v.  Whitlakcr  (1906),  10  Wash..  6."i().  6C.3  (Washington  Laws  of 
1871  provided  in  relation  to  eoniinunity  property:  "The  husband  shall  have  the 
management  of  all  the  common  property,  but  shall  nut  liavo  the  rioht  to  sell  or 
encumber  real  estate  except  he  sliall  be  joined  in  the  sale  or  encumbrance  by  the 
wife.  ..."    Per  Scott,  J. :  "  'Right'  in  the  sense  used  there  means  power"). 

Compare  also  St.  Joseph  Fire  iV'  Marine  Ins.  Co.  v.  flanck  (1876).  63  Mo.,  112, 
118. 

Numberless  additional  instances  might  bo  given  of  the  use  of  tlio  term  "right." 
where  the  legal  quantity  involved  is  really  a  junver  rather  than  a  right  in  the  sense 
of  claim. 

66  It  is  to  be  noted  th:it  abandonment  woubl  leave  X  himself  with  precisely 
the  same  sort  of  privileges  and  powers  as  any  other  person. 

67  Compare  Wiinehamcr  v.  People  (18.56).  13  N.  Y.,  378,  396  (Comstock.  J.: 
"I  can  form  no  notion  of  property  whith  does  not  include  the  e.«!<ential  character- 
istics and  attributes  with  which  it  is  clothed  by  the  laws  of  society  .  .  .  among 
which  are,  fundamentally  the  right   of   the  o'''upant  or  owner  to   use  aud  enjoy 


52  FUNDAMENTAL  LEGAL  CONCEPTIONS 

tions  of  various  kinds.  Agency  cases  are  likewise  instructive.  By  the 
use  of  some  metapJioricnJ  expression  such  as  the  Latin,  qui  facit  per 
alium,  facit  per  se,  the  true  nature  of  agency  relations  is  only  too 
frequently  obscured.  The  creation  of  an  agency  relation  involves, 
inter  alia,  the  grant  of  legal  powers  to  the  so-called  agent,  and  the 
creation  of  correlative  liabilities  in  the  principal."^  That  is  to  say,  one 
party,  P,  has  the  power  to  create  agency  powers  in  another  party.  A, — 
for  example,  the  power  to  convey  P's  property,  the  power  to  impose 
(so-called)  contractual  obligations  on  P,  the  power  to  discharge  a 
debt  owing  to  P,  the  power  to  "receive"  title  to  property  so  that  it 
shall  vest  in  P,  and  so  forth.  Tn  passing,  it  may  be  well  to  observe 
that  the  term  "authority,"  so  frequently  used  in  agency  cases,  is  very 
ambiguous  and  slippery  in  its  connotation.  Properly  employed  in  the 
present  connection,  the  word  seems  to  be  an  abstract  or  qualitative 
term  corresponding  to  the  concrete  "authorization," — the  latter  con- 
sisting of  a  particular  group  of  operative  facts  taking  place  between 
the  principal  and  the  agent.  All  too  often,  however,  the  term  in  ques- 
tion is  so  used  as  to  blend  and  confuse  these  operative  facts  with  the 
powers  and  privileges  thereby  created  in  the  agent.'^'*    A  careful  dis- 

(the  objects)  exclusively,  and  his  absolute  power  to  sell  and  dispose  of  them"); 
Bartemeyer  v.  Iowa  (3873),  18  Wall.,  129,  137  (Field,  J.:  "The  right  of  property 
in  an  article  involves  the  power  to  sell  and  dispose  of  such  article  as  well  as  to 
use  and  enjoy  it");  Low  v.  Bees  Printing  Co.  (1894;),  41  Neb.,  127,  146  (Ryan, 
C. :  "Property,  in  its  broad  sense,  is  not  the  physical  thing  which  may  be  the  sub- 
ject of  ownership,  but  is  the  right  of  dominion,  possession,  and  power  of  disposition 
which  may  be  acquired  over  it"). 

Since  the  power  of  alienation  is  frequently  one  of  the  fundamental  elements  of 
a  complex  legal  interest  (or  property  aggregate),  it  is  obvious  that  a  statute 
extinguishing  such  power  may,  in  a  given  case,  be  unconstitutional  as  depriving  the 
owner  of  property  without  due  process  of  law.     See  the  cases  just  cited. 

C8  For  a  leading  ease  exhibiting  the  nature  of  agency  powers,  especially  powers 
"coupled  with  an  interest,"  see  Kunt  v.  Rousmanier  (1823),  8  Wheat.,  173,  201. 

It  is  interesting  to  note  that  in  the  German  Civil  Code  the  provisions  relating  to 
agency  are  expressed  in  terms  of  powers, — e.g.,  sec.  168:  "The  expiration  of  the 
power  is  determined  by  the  legal  relations  upon  which  the  giving  of  the  power  is 
founded.  The  power  is  also  revocable  in  the  event  of  the  continuance  of  the  legal 
relation,  unless  something  different  results  from  the  latter." 

Incidentally,  it  may  be  noticed  also,  that  as  a  matter  of  English  usage,  the  term 
"power  of  attorney"  has,  by  association  of  ideas,  come  to  be  used  to  designate 
the  mere  operative  instrument  creating  the  powers  of  an  agent. 

69  For  examples  of  the  loose  and  confusing  emplojTuent  of  the  term  "authority" 
in  agency  cases, — and  that  too,  in  problems  of  the  conflict  of  laws  requiring  the 
closest  reasoning, — see  Pope  v.  Niclcerson  (1844),  3  Story,  465,  473,  476,  481,  483; 
Lloyd  V.  Guibert  (1865),  6  B,  &  S.,  100,  117;  Kiiig  v.  Sarria  (1877),  69  N.  Y.,  24, 
28,  30-32;  Risdov,  etc.,  Works  v.  Furness  [1905]  1  K.  B.,  304;  [1906]  1  K.  B.,  49. 

For  a  criticism  of  these  cases  in  relation  to  the  present  matter,  see  the  writer's 


AS  APPLIED  IX  .UDICIAL  REASOXINC.  53 

crimination  in  those  partic-ulars  would,  it  is  suhinittod,  go  far  toward 
clearing  up  certain  i)rol)lriiis  in  tlic  law  of  agency.'" 

Essentially  similar  to  the  ]>owers  ol'  agents  are  powers  of  appoint- 
ment in  relation  to  propei'ty  interests.  So,  too.  the  powers  of  puhlii* 
officers  are,  intrinsically  con.sidered,  comparable  to  tiiosc  of  agents. — 
for  example,  the  power  of  a  sheriff  to  sell  property  under  a  writ  of 
execution.  The  power  of  a  donoi-.  in  a  gift  rausa  mortis,  to  revoke  the 
gift  and  divest  the  title  of  the  donee  is  another  clear  example  of  the 
legal  quantities  now  being  considered;"'  also  a  pledgee's  statutory 
power  of  sale.'- 

There  are.  on  the  other  hand,  cas.-s  when'  tin'  true  iiatun-  of  tiie 
relations  involved  has  not,  perhaps,  been  .so  clearly  recognized.  Thus, 
in  the  case  of  a  conditional  sale  of  pei-sonalty,  a.ssuming  the  vendee's 
agreement  has  l)een  fully  performed  except  as  to  the  payment  of  the 
last  instalment  and  the  time  for  the  latter  has  arrived,  what  is  the 
interest  of  such  vendee  as  regards  the  property?  lias  he.  as  so  often 
assumed,  merely  a  contractual  rif/ht  to  have  title  passed  to  him  by 
consent  of  the  vendor,  on  final  payment  being  made;  or  has  he.  irre- 
spective of  the  consent  of  the  vendor  the  power  to  divest  the  title  of 
the  latter  and  to  acquire  a  perfect  title  for  himself?  Though  the 
language  of  the  cases  is  not  always  so  clear  as  it  might  be,  the  vendee 

article  The  Individual  Liahilitij  of  Stockholders  and  the  Conflict  of  Laws  (1909), 
9  Columbia  Law  Review,  492,  512.  n.  4t>.  .j2].  ii.  71;  10  r'olumbia  I*'iw  Review, 
542-544,  reprinted  infra. 

"0  The  clear  understand ing  and  recognition  of  the  agency  relation  ns  involving 
the  creation  of  legal  powers  may  be  of  crucial  importance  in  many  ca.ses. — espe- 
cially, as  already  intimated,  in  regard  to  prol)lems  in  the  conflict  of  laws.  Besides 
the  cases  in  the  preceding  note,  two  others  may  be  referred  to.  Milliken  v.  Pratt 
(1878),  125  Mass.,  374,  presenting  no  analysis  of  the  agency  problem;  and,  on  the 
other  hand.  Freeman's  Appeal  (1897).  68  Conn.,  533,  involving  a  careful  analj-sis 
of  the  agency  relation  by  Baldwin,  .1.  Led  by  this  analysis  to  reach  a  decision 
essentially  opposite  to  that  of  the  Massachusetts  case,  the  learned  .iudge  said, 
iiiter  alia : 

''Such  was,  in  effect,  the  act  by  which  Mrs.  Mitchell  undertook  to  do  what  she 
had  no  legal  capacity  to  do,  by  making  her  husband  her  agent  to  deliver  the 
guaranty  to  the  bank.  He  had  no  nuire  power  to  make  it  operative  by  delivery 
in  Chicago  to  one  of  his  creditors  in  Illinois,  than  he  would  have  had  to  make  it 
operative  by  delivery  here,  had  it  been  drawn  in  favor  of  one  of  his  creditors  in 
Connecticut.  It  is  not  the  place  of  delivery  that  controls,  but  the  power  of 
delivery. ' ' 

"1  See  Emerji  v.  Cloufih  (1^'^5).  03  X'.  11.,  552  ("right  or  power  of  defea- 
sance"). 

"2  See  Hudf/ens  v.  Chamberlain  (1911),  161  Cal..  71(i.  713.  715.  For  another 
instance  of  statutory  powers,  see  Capital,  etc.,  Bk.  v.  Bhodc/i  [1903]  1  Ch.,  631,  655 
(powers  under  registry  acts). 


54  FUNDAMENTAL  LEGAL  CONCEPTIONS 

seems  to  have  precisely  that  sort  of  power."  Fundamentally  con- 
sidered, the  typical  escrow  transaction  in  which  the  performance  of 
conditions  is  \Aathin  the  volitional  control  of  the  grantee,  is  somewhat 
similar  to  the  conditional  sale  of  personalty ;  and,  when  reduced  to  its 
low^est  terms,  the  problem  seems  easily  to  be  solved  in  terms  of  legal 
powers.  Once  the  "escrow"  is  formed,  the  grantor  still  has  the  legal 
title :  but  the  grantee  has  an  irrevocable  power  to  divest  that  title  by 
performance  of  certain  conditions  (i.e.,-  the  addition  of  various  opera- 
tive facts),  and  concomitantly  to  vest  title  in  himself.  "While  such 
power  is  outstanding,  the  grantor  is,  of  course,  subject  to  a  correlative 
liability  to  have  his  title  divested.'*  Similarly,  in  the  case  of  a  con- 
veyance of  land  in  fee  simple  subject  to  condition  subsequent,  after 
the  condition  has  been  performed,  the  original  grantor  is  commonly 

'3  Though  the  nebulous  term  ' '  rights ' '  is  used  by  the  courts,  it  is  evident  that 
powers  are  the  actual  quantities  involved. 

Thus,  in  the  instructive  case  of  Carpenter  v.  Scott  (1881),  13  E.  I.,  477,  479,  the 
court  said,  by  Matteson,  J.:  "Under  it  (the  conditional  sale)  the  vendee  acquires 
not  only  the  right  of  possession  and  use,  but  the  right  to  become  the  absolute 
owner  upon  complying  with  the  terms  of  the  contract.  These  are  rights  of  which 
no  act  of  the  vendor  can  divest  him,  and  which,  in  the  absence  of  any  stipulation 
in  the  contract  restraining  him,  he  can  transfer  by  sale  or  mortgage.  Upon  per- 
formance of  the  conditions  of  the  sale,  the  title  to  the  property  vests  in  the  vendee, 
or  in  the  event  that  he  has  sold,  or  mortgaged  it,  in  his  vendee,  or  mortgagee, 
without  further  bill  of  sale.  .  .  .  These  rights  constitute  an  actual,  present  inter- 
est in  the  property,  which,  as  we  have  seen  above,  is  capable  of  transfer  by  sale  or 
mortgage. ' ' 

It  is  interesting  to  notice  that  in  the  foregoing  passage,  the  term  ' '  right ' '  is 
first  used  to  indicate  privileges  of  possession  and  use;  next  the  term  is  employed 
primarily  in  the  sense  of  legal  power,  though  possibly  there  is  a  partial  blending 
of  this  idea  with  that  of  legal  claim,  or  right  (in  the  narrowest  connotation)  ;  then 
the  term  (in  plural  form)  is  used  for  the  third  time  so  as  to  lump  together  the 
vendee's  privileges,  powers  and  claims. 

For  another  case  indicating  in  substance  the  true  nature  of  the  vendee 's  interest, 
see  Christensen  v.  Nelson  (1901),  38  Or.,  473,  477,  479,  indicating,  in  effect,  that 
the  vendee 's  powers  as  well  as  privileges  may  be-  transferred  to  another,  and  that 
a  proper  tender  constitutes  "the  equivalent  of  payment." 

74  See  Davis  v.  ClarJc  (1897),  58  Kan,,  100;  48  Pac,  563,  565;  Leiter  v.  Pile 
(1889),  127  111.,  287,  326;  Welstur  v.  Trust  Co.  (1895),  145  N.  Y.,  275,  283; 
Furley  v.  Palmer  (1870),  20  Oh.  St.,  223,  225. 

The  proposition  that  the  grantee's  power  is  irrevocable  is  subject  to  the  quali- 
fication that  it  might  possibly  be  extinguished  (or  modified  pro  tanto)  as  the  result 
of  a  transaction  between  the  grantor  and  one  having  the  position  of  bona  fide 
purchaser,  or  the  equivalent. 

It  is  hardly  necessary  to  add  that  the  courts,  instead  of  analyzing  the  problem 
of  the  escrow  in  terms  of  powers,  as  here  indicated,  are  accustomed  to  stating  the 
question  and  deciding  it  in  terms  of  "delivery,"  "relation  back,"  "performance 
of  conditions,"  etc. 


AS  APPLIED  IX  JUDICIAL  REASONING  55 

said  to  have  a  ''right  of  entry."  If,  however,  the  problem  is  analyzed, 
it  will  be  seen  that,  as  of  primary  importance,  the  grantor  Iwus  two 
legal  quantities,  (1)  the  privilege  of  entering,  and  (2)  the  power,  by 
means  of  such  entry,  to  divest  the  estate  of  the  grantee."  The  latter 's 
estate  endures,  subject  to  the  correlative  liability  of  l)eing  div.'sted, 
until  such  power  is  actually  exercised.^" 

Passing  now  to  the  field  of  contracts,  suppose  A  mails  a  Iftu-r  lo  B 
offering  to  sell  the  former's  land.  ^Vhiteacre,  to  the  latter  for  ten 
thousand  dollars,  such  letter  being  duly  received.  The  operative  facta 
thus  far  mentioned  have  created  a  power  a.s  regards  H  and  a  corre- 
lative liability  as  regards  A.  B.  by  dropping  a  letter  of  acceptance  in 
the  box,  has  the  power  to  impose  a  potential  or  inchoate"  obligation 
ex  contractu  on  A  and  himself;  and.  a.ssuming  that  the  land  is  worth 
fifteen  thousand  dollars,  that  partieuiar  legal  ijuantity — the  '"power 
plus  liability"  relation  ])etween  A  and  B — seems  to  be  worth  about 
five  thousand  dollars  to  B.  The  liability  of  A  will  continue  for  a 
reasonable  time  unless,  in  exercise  of  his  power  to  do  so,  A  previously 
extinguishes  it  by  that  series  of  operative  facts  known  as  "revoca- 
tion." These  last  matters  are  usually  described  by  saying  that  A's 
"offer"  will  "continue"  or  "remain  open"  for  a  reasonable  time,  or 
for  the  definite  time  actually  specified,  unles.s  A  previously  "with- 
draws" or  "revokes"  such  offer. "^  "While,  no  doubt,  in  the  great 
majority  of  cases  no  harm  results  from  the  use  of  such  expressions,  yet 
these  forms  of  statement  seem  to  represent  a  blending  of  non-legal  and 
legal  quantities  which,  in  any  ]>roblem  re<iuiring  careful  reasoning, 
should  preferably  be  kept  distinct.  An  oft'er,  considered  as  a  .series 
of  physical  and  mental  operative  facts,  has  spent  its  force  and  become 
functus  officio   as  soon  as  such   series  ha.s  been   completed   by   the 

■5  In  this  connection  it  is  worthy  of  note  that  Sugden.  in  his  work  on  Powers 
(8th  ed.,  1861),  4,  uses,  contrary  to  general  practice,  the  expression,  "power  of 
entry  for  condition  broken." 

"6  For  miscellaneous  instances  of  powers,  see  the  good  opinions  in  Bk.  of  S. 
Australia  v.  Abrahams  (1875),  L.  R.  6  P.  C,  265;  Barlow  v.  Ross  (1890).  24 
Q.  B.  D.,  381,  384. 

""As  to  "inchoate"  obligations,  see  Frost  r.  Knifjht  (1872)  L.  R.  7  E\.  Ill, 
per  Cockburn,  C.  J.  This  matter  will  ro<civo  further  attention  in  a  later  part  of 
the  discussion. 

-8  Compare  Bostot  E.  Co.  r.  Bartlctt  (1849).  3  Cush.,  225:  "Though  the 
writing  signed  by  the  defendant  was  but  an  ofTer,  and  an  offer  which  might  be 
revoked,  yet  while  it  remained  in  force  and  unrevoked,  it  was  a  continuing  offer, 
during  the  time  limited  for  acceptance,  and  during  the  whole  of  the  rest  of  the 
time  it  was  an  offer  every  inst^ant ;  but  as  soon  as  it  was  aoceitted,  it  cea.<ed  to  be 
an  offer  merely. ' ' 

Compare  also  the  forms  of  statement  in  Ashley,  Contracts  (1011),  16  ff  acq. 


56  FUNDAMENTAL  LEGAL  CONCEPTIONS 

"offeree's  receipt."  The  real  question  is  therefore  as  to  the  legal 
effect,  if  any,  at  that  moment  of  time.  If  the  latter  consist  of  B's 
power  and  A's  correlative  liability,  manifestly  it  is  those  legal  rela- 
tions that  "continue"  or  "remain  open"  until  modified  by  revoca- 
tion or  other  operative  facts."^'*  AVhat  has  thus  far  been  said 
concerning  contracts  completed  by  mail  would  seem  to  apply,  mutatis 
mutandis,  to  every  type  of  contract.  Even  where  the  parties  are  in  the 
presence  of  each  other,  the  offer  creates  a  liability  against  the  offerer, 
together  with  a  correlative  power  in  favor  of  the  offeree.  The  only 
distinction  for  present  purposes  would  be  in  the  fact  that  such  power 
and  such  liability  would  expire  within  a  very  short  period  of  time. 

Perhaps  the  practical  justification  for  this  method  of  analysis  is 
somewhat  greater  in  relation  to  the  subject  of  options.  In  his  able 
work  on  Contracts,''^  Langdell  says : 

"If  the  offerer  stipulates  that  his  offer  shall  remain  open  for  a 
specified  time,  the  first  question  is  whether  such  stipulation  constitutes 
a  binding  contract.  .  .  .  When  such  a  stipulation  is  binding,  the 
further  question  arises,  whether  it  makes  the  offer  irrevocable.  It  has 
been  a  common  opinion  that  it  does,  but  that  is  clearly  a  mistake. 
.  .  .  An  offer  is  merely  one  of  the  elements  of  a  contract ;  and  it  is 
indispensable  to  the  making  of  a  contract  that  the  wills  of  the  con- 
tracting parties  do,  in  legal  contemplation,  concur  at  the  moment  of 
making  it.  An  offer,  therefore,  which  the  party  making  it  has  no 
power  to  revoke,  is  a  legal  impossibility.  Moreover,  if  the  stipulation 
should  make  the  offer  irrevocable,  it  Mould  be  a  contract  incapable  of 
being  broken ;  which  is  also  a  legal  impossibilty.  The  only  effect, 
therefore,  of  such  a  stipulation  is  to  give  the  offeree  a  claim  for 
damages  if  the  stipulation  be  broken  by  revoking  the  offer. '  '^^ 

The  foregoing  reasoning  ignores  the  fact  that  an  ordinary  offer  ipso 
facto  creates  a  legal  relation — a  legal  power  and  a  legal  liability, — 
and  that  it  is  this  relation  (rather  than  the  physical  and  mental  facts 
constituting  the  offer)  that  "remains  open."  If  these  points  be  con- 
ceded, there  seems  no  difficulty  in  recognizing  a  unilateral  option 
agreement  supported  by  consideration  or  embodied  in  a  sealed  instru- 
ment as  creating  in  the  optionee  an  irrevocable  power  to  create,  at  any 
time  wdthin  the  period  specified,  a  bilateral  obligation  as  between 

'8a  [See  the  unusually  clear  statement  of  Holmes,  J.,  in  Braticr  v.  Shaw  (1897), 
168  Mass.,  198,  200:  "By  their  choice  and  act  they  brought  about  a  relation 
between  themselves  and  the  plaintiffs  Avhich  the  plaintiffs  could  turn  into  a  con- 
tract by  an  act  on  their  part.  .  .  .'*] 

T9  Langdell,  Summary  of  Contracts  (2d  ed.,  1880)  sec.  178. 

80  Langdell 's  a  priori  premises  and  specific  conclusions  have  been  adopted  by  a 
number  of  other  writers  on  the  subject.  See,  for  example,  Ashley,  Contracts 
(1911),  25  et  seq.;  E.  L.  McWilliams,  Enforcement  of  Option  Agreements,  (1913) 
1  Calif.  Law  Review,  122. 


AS  AI'l'LlHD  IN   .IIDKIAL  K1i:AS(J.\I  Nd  57 

himself  and  the  giver  of  tlir  option.  Corn-lativfly  to  that  power, 
there  would,  of  course,  he  a  liahility  ajrainst  the  option-giver  wiiich 
he  himself  would  have  no  power  to  extinguish.  The  courts  seem  to 
have  no  difficulty  in  reaching  [)rccisely  this  result  as  a  nuitter  of  suh- 
stanee;  though  their  explanations  are  always  in  terms  of  "withdrawal 
of  offer,"  and  similar  expressions  savoi-ing  ot"  pliysieal  and  mental 
(juantities.'*^ 

In  connection  with  tiie  powers  and  liahilities  ereated  res[)eeliv«-ly 
hy  an  ordinary  offer  and  by  an  option,  it  is  interesting  to  consider  the 
liabilities  of  a  person  engaged  in  a  "public  calling":  for,  as  it  seeins, 
such  a  party's  characteristic  position  is,  one  might  almost  say,  inter- 
mediate between  that  of  an  ordinary  contractmil  offerer  and  that  of 
an  option-giver.  It  has  indeed  been  usual  to  assert  that  such  a  party 
is  (generally  speaking)  under  a  present  <lui]j  to  all  other  parties;  but 
this  is  believed  to  be  erroneous.  Thus,  Professor  AVyman.  in  ids  work 
on  Public  Service  Companies,'^'-  says: 

"The  duty  placed  upon  every  one  exercising  a  pulilie  calling  is 
primarily  a  dut]j  to  serve  every  man  who  is  a  member  of  tlu*  public. 
.  .  .  It  is  somewhat  difficult  to  place  this  exceptional  duty  in  our 
legal  system.  .  .  .  The  truth  of  the  matter  is  that  the  obligation  resting 
upon  one  who  has  undertaken  the  performance  of  i)ul)lic  duty  is  sui 
generis. "^^ 

It  is  submitted  that  the  learned  writer's  difficulties  ari.se  primarily 
from  a  failure  to  see  that  the  innkeeper,  the  common  carrier  and  others 
similarly   "holding  out"   are   under  present    liabilities   rather   than 

81  For  a  recent  .iudicial  expression  on  the  subject,  see  ff.  G.  Brtsc  Co.  r.  Uouse 
(1912),  162  Cal.,  740,  745,  per  Sloss.  J.:  "Where  there  is  :i  consideration,  the 
option  cannot  be  withdrawn  during  the  time  agreed  upon  for  its  duration,  while, 
if  there  be  no  consideration  the  party  who  has  given  the  ojition  may  revoke  it  at 
any  time  before  acceptance,  even  though  Ihe  time  limited  has  not  expired  .  .  . 
such  offer,  duly  accepted,  constitutes  a  contract  liijiding  upon  both  j>arties  and 
enforceable  by  either. ' ' 

See,  to  the  same  effect,  Liim  r.  McLean  (ISS.'J),  SO  Ala.,  :?no.  .■?r,4 ;  rr/?nVn  v. 
Boland  (1896),  166  Mass.,  481,  483  (sealed  offer). 

Most  of  the  cases  recognizing  the  irrevocable  jiower  of  tlic  oj>fioneo  have  arisen 
in  equitable  suits  for  specific  performamc;  liut  there  sei-ms  to  be  no  reason  for 
doubting  that  the  same  doctrine  should  le  ajijdied  in  a  common  law  action  for 
damages.  See,  in  accord.  Baler  v.  Show  (1912),  68  Wash..  09.  lO.T  {dicta  in  nn 
action  for  damages). 

[For  applications  of  the  method  of  analysis  here  presented,  see  Profes.sor  .\rfhur 
L.  Corbin,  Offer  and  Acceptance,  and  Smne  of  the  liesultino  Lr,jal  Rrlalion^, 
(1917)  26  Yale  Law  .Tournal,  169;  also  (by  the  same  writer)  CotHiituii..t  i/i  the 
Law  of  Contract.'^,  (1919)  2S  Yale  Law  .lonrnal.  7.".9.— Kd.] 

82  Sees.  .^.SO-.^S.?. 

83  Compare,  to  the  same  effect.  Keener.  Qua.-ii  Contracts  (1893),  p.  IS. 


58  FUNDAMENTAL  LEGAL  CONCEPTIONS 

present  duties.  Correlative  to  those  liabilities  are  the  respective 
powers  of  the  various  members  of  the  public.  Thus,  for  example,  a 
traveling  member  of  the  public  has  the  legal  power,  by  making  proper 
application  and  sufficient  tender,  to  impose  a  duty  on  the  innkeeper 
to  receive  him  as  a  guest.  For  breach  of  the  duty  thus  created  an 
action  would  of  course  lie.  It  would  therefore  seem  that  the  inn- 
keeper is,  to  some  extent,  like  one  who  had  given  an  option  to  every 
traveling  member  of  the  public.  He  differs,  as  regards  net  legal  effect, 
only  because  he  can  extinguish  his  present  liabilities  and  the  correl- 
ative powers  of  the  traveling  members  of  the  public  hy  going  out  of 
husiness.  Yet,  on  the  other  hand,  his  liabilities  are  more  onerous 
than  that  of  an  ordinary  contractual  offerer,  for  he  cannot  extinguish 
his  liabilities  by  any  simple  performance  akin  to  revocation  of  offer. 

As  regards  all  the  ' '  legal  powers ' '  thus  far  considered,  possibly  some 
caution  is  necessary.  If,  for  example,  w^e  consider  the  ordinary 
property  owner's  power  of  alienation,  it  is  necessary  to  distinguish 
carefully  between  the  legal  power,  the  physical  power  to  do  the  things 
necessary  for  the  "exercise"  of  the  legal  power,  and,  finally,  the 
privilege  of  doing  these  things — that  is,  if  such  privilege  does  really 
exist.  It  may  or  may  not.  Thus,  if  X,  a  landoA\aier,  has  contracted 
with  Y  that  the  former  Anil  not  alienate  to  Z,  the  acts  of  X  necessary 
to  exercise  the  power  of  alienating  to  Z  are  privileged  as  between  X 
and  every  party  other  than  Y;  but,  obviously,  as  between  X  and  Y, 
the  former  has  no  privilege  of  doing  the  necessary  acts ;  or  conversely, 
he  is  under  a  duty  to  Y  not  to  do  what  is  necessary  to  exercise  the 
power. 

In  view  of  what  has  already  been  said,  very  little  may  suffice  con- 
cerning a  liahility  as  such.  The  latter,  as  we  have  seen,  is  the  correl- 
ative of  power,  and  the  opposite  of  immunity  (or  exemption).  While 
no  doubt  the  term  "liability"  is  often  loosely  used  as  a  synonym  for 
"duty,"  or  "obligation,"  it  is  believed,  from  an  extensive  survey  of 
judicial  precedents,  that  the  connotation  already  adopted  as  most 
appropriate  to  the  word  in  question  is  fully  justified.  A  few  cases 
tending  to  indicate  this  will  now  be  noticed.  In  McNeer  v.  McNeer,^* 
Mr.  Justice  Magruder  balanced  the  conceptions  of  power  and  liability 
as  follows: 

"So  long  as  she  lived,  however,  his  interest  in  her  land  lacked  those 
elements  of  property,  such  as  power  of  disposition  and  liahility  to  sale 
on  execution  which  had  formerly  given  it  the  character  of  a  vested 
estate. ' ' 

In  Booth  V.  Commonwealth,^^  the  court  had  to  construe  a  Virginia 

84  (1892)  142  111.,  388,  397.  85  (1861)  16  Grat.,  519,  525. 


AS  AI'TLIKI)  IX  .ITDIi'IAL  REASONING  59 

statute  providing  "that  all  five  wliitf  iiuile  persons  who  are  twenty- 
one  years  of  age  and  not  over  sixty,  shall  he  liable  to  serve  as  jurors, 
except  as  hereinafter  provided."  It  is  plain  that  this  enactment 
imposed  only  a  liahilitij  and  not  a  chtfy.  It  is  a  liahility  to  have  a 
duty  created.  The  latter  would  arise  only  when,  in  exercise  of  their 
powers,  the  parties  litigant  and  the  court  ofificfrs  had  done  what  was 
necessary  to  impose  a  specific  duty  to  j)erform  the  functions  of  a 
juror.  The  language  of  the  court,  by  ]\Ioncure.  J.,  is  particularly 
apposite  as  indicating  that  liability  is  the  opposite,  or  negative,  of 
immunity  (or  exemption)  : 

''The  word  both  expressed  and  implied  is  'liablr.'  which  has  a  very 
different  meaning  from  '(jualified'  ...  Its  meaning  is  'bound'  or 
'obliged.'  ...  A  person  exempt  from  serving  on  juries  is  not  liable 
to  serve,  and  a  person  not  liable  to  serve  is  exempt  from  serving.  The 
terms  seem  to  be  convertible.'' 

A  further  good  example  of  judicial  usage  is  to  be  found  in  Emrry 
V.  Clough.^^  Referring  to  a  gift  causa  mortis  and  the  donee's  liability 
to  have  his  already  vested  interest  divested  l)y  the  donor's  exercise  of 
his  power  of  revocation,  Mr.  Justice  Smith  said : 

"The  title  to  the  gift  causa  mnriis  passed  by  the  delivery,  defeasible 
only  in  the  lifetime  of  the  donor,  and  his  death  perfects  the  title  in 
the  donee  by  terminating  the  donor's  right  or  power  of  defeasance. 
The  property  passes  from  the  donor  to  the  donee  directlj'  .  .  .  and 
after  his  death  it  is  liable  to  lie  divrsfecl  only  in  favor  of  the  donor's 
creditors.  .   .   .    His  right  and  power  ceased  with  his  death." 

Perhaps  the  nearest  synonym  of  "liability"  is  "subjection"  or 
"responsibility."  As  regards  the  latter  word,  a  passage  from  Mr. 
Justice  Day's  opinion  in  McElfresh  v.  KirkcndalP'  is  interesting: 

"The  words  'debt'  and  'liability'  are  not  synonymous,  and  they  arc 
not  commonly  so  understood.  As  applied  to  the  peeuniary  relations 
of  the  parties,  liability  is  a  term  of  broader  signiticance  than  debt. 
.    .    .  Liability  is  responsibility." 

While  the  term  in  question  has  the  broad  generic  connotation 
already  indicated,  no  doubt  it  very  frequently  indicates  that  specific 
form  of  liability  (or  complex  of  liabilities'!  that  is  correlative  to  a 
power  (or  complex  of  powers)^^  vested  in  a  party  litigant  and  the 
various  court  officers.    Such  was  held  to  be  the  meaning  of  a  certain 


-        -.-,)  63  N.  n.,  552. 

87  (1573)  36  la.,  224,  226. 

88  Compare  Attorveij  Gcxeral  v.  Sudclen  [ISOfi]  1  Q.  B.,  354.  359  (per  Lord 
Esher:  "What  is  called  a  'rit;;ht  of  action'  is  not  the  pouer  of  hringing  an  action. 
Anybody  can  bring  an  action  thoujrh  he  has  no  right  at  all.'")  ;  Krocssin  v.  KcUcr 
(1895),  60  Minn.,  372  (per  Collins.  J.:  "The  power  to  bring  such  actions"). 


60  FUNDAMENTAL  LEGAL  CONCEPTIONS 

California  statute  involved  in  the  case  of  Lattin  v.  Gillette}^     Said 
Mr.  Justice  Harrison : 

"The  word  'liability'  is  the  condition  in  Avhich  an  individual  is 
placed  after  a  breach  of  his  contract,  or  a  violation  of  any  obligation 
resting  upon  him.    It  is  defined  by  Bouvier  to  be  responsibility. '  '^° 

Immunities  and  Disahilitics.  As  already  brought  out,  immunity  is 
the  correlative  of  disability  ("no-power"),  and  the  opposite,  or  nega- 
tion, of  liability.  Perhaps  it  will  also  be  plain,  from  the  preliminary 
outline  and  from  the  discussion  down  to  this  point,  that  a  power  bears 
the  same  general  contrast  to  an  immunity  that  a  right  does  to  a 
privilege.  A  right  is  one's  affirmative  claim  against  another,  and  a 
privilege  is  one's  freedom  from  the  right  or  claim  of  another.  Simi- 
larly, a  power  is  one 's  affirmative  ' '  control ' '  over  a  given  legal  relation 
as  against  another;  whereas  an  immunity  is  one's  freedom  from  the 
legal  power  or  "control"  of  another  as  regards  some  legal  relation. 

A  few  examples  may  serve  to  make  this  clear.  X,  a  landowner,  has, 
as  we  have  seen,  power  to  alienate  to  Y  or  to  any  other  ordinary  party. 
On  the  other  hand,  X  has  also  various  immunities  as  against  Y,  and 
all  other  ordiuarj^  parties.  For  Y  is  under  a  disability  (i.e.,  has  no 
power)  so  far  as  shifting  the  legal  interest  either  to  himself  or  to  a 
third  party  is  concerned;  and  what  is  true  of  Y  applies  similarly  to 
every  one  else  who  has  not  by  virtue  of  special  operative  facts  acquired 
a  power  to  alienate  X's  property.  If,  indeed,  a  sheriff  has  been  duly 
empowered  by  a  writ  of  execution  to  sell  X's  interest,  that  is  a  very 
different  matter:  correlative  to  such  sheriff's  power  would  be  the 
liability  of  X, — ^the  very  opposite  of  immunity  (or  exemption).  It 
is  elementary,  too,  that  as  against  the  sheriff,  X  might  be  immune  or 
exempt  in  relation  to  certain  parcels  of  property,  and  be  liable  as  to 

89  (1892)  95  Cal.,  317,  319. 

80  We  are  apt  to  think  of  liability  as  exclusively  an  onerous  relation  of  one 
party  to  another.  But,  in  its  broad  technical  significance,  this  is  not  necessarily 
so.  Thus  X,  the  owner  of  a  watch,  has  the  power  to  abandon  his  property — that 
is,  to  extinguish  his  existing  rights,  powers,  and  immunities  relating  thereto  (not, 
however,  his  i^rivileges,  for  until  someone  else  has  acquired  title  to  the  abandoned 
watch,  X  would  have  the  same  privileges  as  before);  and  correlatively  to  X's 
power  of  abandonment  there  is  a  liability  in- every  other  person.  But  such  a 
liability  instead  of  being  onerous  or  unwelcome,  is  quite  the  opposite.  As  regards 
another  person,  M,  for  example,  it  is  a  liability  to  have  created  in  Ids  favor  (though 
against  his  will)  a  privilege  and  a  power  relating  to  the  watch, — that  is,  the  privi- 
lege of  taking  possession  and  the  power,  by  doing  so,  to  vest  a  title  in  himself. 
See  Dougherty  v.  Creary  (1866),  30  Cal.,  290,  298.  Contrast  with  this  agreeable 
form  of  liability  the  liability  to  have  a  duty  created — for  example,  the  liability  of 
one  who  has  made  or  given  an  option  in  a  case  where  the  value  of  the  property  has 
greatly  risen. 


AS  ATPLIKI)  IX  JUDICIAL  REASOXIXG  r.l 

others.^'^^  Similarly,  if  uii  a^'t-nt  has  1r-.-ii  duly  appointi-.l  l.y  X  to 
sell  a  given  piece  of  property,  then,  as  to  the  latter,  X  has,  in  n-latiun 
to  such  agent,  a  lia])ility  rather  than  an  iiiuinniity. 

For  over  a  century  there  has  been,  in  this  country,  a  gn-at  d.-al  of 
important  litigation  involving  innnunities  from  powers  of  taxation. 
Jf  there  be  any  lingering  misgivings  as  to  the  "practical"  importance 
of  accuracy  and  discrimination  in  legal  conceptions  and  legal  terms, 
perhaps  some  of  such  doubts  would  be  dispelled  by  considering  the 
numerous  cases  on  valuable  taxation  exemptions  coining  before  the 
United  States  Supreme  Court.  Thus,  in  Phomix  Ins.  Co.  v.  Tnims- 
see,^^  Mr.  Justice  Peekham  expressed  the  views  of  the  court  as  follows : 

"In  granting  to  the  De  Soto  Company  all  tlic  rights,  privileges,  and 
immunities'  of  the  Bluff  City  Company,  all  words  are  used  which 
could  be  regarded  as  necessary  to  carry  the  exemption  from  taxation 
possessed  by  the  Bluff  City  Company;  while  in  the  next  following 
gi-ant,  that  of  the  charter  of  the  plaintiff  in  error,  the  word  'imimni- 
ity'  is  omitted.  Is  thej-e  any  meaning  to  be  attached  to  that  omission, 
and  if  so,  what?  We  think  some  meaning  is  to  be  attached  to  it.  The 
word  'immunity'  expresses  more  clearly  and  detinitely  an  intention 
to  include  therein  an  exemption  from  taxation  than  does  either  of  the 
other  words.  Exemption  from  taxation  is  inore  accurately  described 
as  an  'immunity'  than  as  a  privilege,  although  it  is  not  to  be  denied 
that  the  latter  word  may  sometimes  and  under  some  circumstances 
include  such  exemptions." 

In  Morgan  v.  Louisiana^'-  there  is  an  instructive  discussion  from 
the  pen  of  ]\Ir.  Justice  Field.  In  holding  that  on  a  foreclosure  sale 
of  the  franchise  and  property  of  a  railroad  cor]>oration  an  imnnniity 
from  taxation  did  not  pass  to  the  purchaser,  the  learned  jutlgc  .said: 

"As  has  been  often  said  by  this  court,  the  whole  comnuinity  is  inter- 
ested in  retaining  the  power  of  taxation  undiminislicd.  .  .  .  The 
exemption  of  the  property  of  the  comjiany  from  taxation,  and  the 
exemption  of  its  officers  and  servants  from  jury  and  military  duty, 
were  both  intended  for  the  benefit  of  the  company,  and  its  benefit 
alone.  In  their  personal  character  they  are  analogous  to  exemptions 
from  execution  of  certain  property  of  debtors,  made  by  laws  of  sfveral 
of  the  states. ' "■*'' 

So  far  as  immunities  are  concerned,   the  two  judicial   di.soussions 


«f>a  See  the  use  of  "imnnmity "  by  Moore,  J.,  in  CoUnu-k-  v.  ifanin  (1911),  60 
Or.,  312.  118  Vac,  lOlfi. 

J»i  (1895)   161   V.  S.,  174.  177. 

«2  (1876)  93  U.  S.,  217,  222. 

03  See,  in  apcord,  Pirnrd  v.  Tcviir.'inrr,  ,t,\.  H.  (n.  (ISSS).  130  V.  S..  «137,  6-J2 
(Field.  .T.);  Fmhrstrr  h'niUran  Co.  v.  Unrhrstrr  (190CO,  20.",  V.  S.,  236,  2r,2 
(Moody,  J.,  reviewing  the  many  other  cases  on  the  siili,ie<'ti. 

In  Inteniat.  .j'-  G.  X.  Hji.  Co.  r.  Sditr  (ls<iO),  T.T  Tex..  .3."r>.  a  d'.ffrrent  view  was 


62  FUNDAMENTAL  LEGAL  CONCEPTIONS 

last  quoted  concern  respectively  problems  of  interpretation  and  prob- 
lems of  alienability.  In  many  other  cases  difficult  constitutional 
questions  have  arisen  as  the  result  of  statutes  impairing  or  extending 
various  kinds  of  immunities.  Litigants  have,  from  time  to  time,  had 
occasion  to  appeal  both  to  the  clause  against  impairment  of  the 
obligation  of  contracts  and  to  the  provision  against  depriving  a 
person  of  property  without  due  process  of  law.  This  has  been  espe- 
cially true  as  regards  exemptions  from  taxation^*  and  exemptions 
from  execution.''^ 

If  a  word  may  now  be  permitted  with  respect  to  mere  terms  as  such, 
the  first  thing  to  note  is  that  the  word  "right"  is  overworked  in  the 
field  of  immunities  as  elsewhere.^"  As  indicated,  however,  by  the 
judicial  expressions  already  quoted,  the  best  synonym  is,  of  course, 
the  term  ' '  exemption. '  '^^    It  is  instructive  to  note,  also,  that  the  word 

taken  as  to  the  alienahUity  of  an  immunity  from  taxation.  Speaking  by  Stayton, 
C.  J.,  the  court  said  (p.  377)  : 

"Looking  at  the  provisions  of  the  Act  of  March  10,  187.5,  we  think  there  can 
be  no  doubt  that  the  exemption  from  taxation  given  by  it,  instead  of  being  a  right 
vesting  only  in  appellant,  is  a  right  which  inheres  in  the  property  to  which  it 
applies,  and  follows  it  into  the  hands  of  whosoever  becomes  the  owner.  .  .  .  The 
existence  of  this  right  enhances  the  value  of  the  property  to  which  it  applies. 
Shareholders  and  creditors  must  be  presumed  to  have  dealt  with  the  corporation  on 
the  faith  of  the  contract  which  gave  the  exemption,  and  it  cannot  be  taken  away 
by  legislation,  by  dissolution  of  the  corporation,  or  in  any  other  manner  not  suffi- 
cient to  pass  title  to  any  other  property  from  one  jierson  to  another.  The  right 
to  exemption  from  taxation  is  secured  by  the  same  guaranty  which  secures  titles 
to  those  owning  lands  granted  under  the  act,  and  though  the  corporation  may  be 
dissolved,  will  continue  to  exist  in  favor  of  persons  owning  the  property  to 
which  the  immunity  applies.  Lawful  dissolution  of  a  corporation  will  destroy  all  its 
corporate  franchises  or  privileges  vested  by  the  act  of  incorporation ;  but  if  it  holds 
rights,  privileges,  and  franchises  in  the  nature  of  property,  secured  by  contract 
based  on  valuable  consideration,  these  will  survive  the  dissolution  of  the  corpora- 
tion, for  the  benefit  of  those  who  may  have  a  right  to  or  just  claim  upon  its  assets. ' ' 

Compare,  as  regards  homestead  exemptions,  Sloss,  J.,  in  Smith  v.  Bougham 
(1909),  156  Cal.,  3-59,  365:  "A  declaration  of  homestead  .  .  .  attaches  certain 
privileges  and  immunities  to  such  title  as  may  at  the  time  be  held. ' ' 

9*  See  Choate  v.  Trapp  (1912),  224  U.  S.,  665. 

05  See  Brearly  ScJwol,  Limited  v.  Ward  (1911),  201  N.  Y.,  358;  94  N.  E.,  1001 
(an  interesting  decision,  with  three  judges  dissenting).  The  other  cases  on  the 
subject  are  collected  in  Ann.  Cas.,  1912  B,  259. 

96  See  Brearly  School,  Limited  v.  Ward,  cited  in  preceding  note;  also  Internat. 
4-  G.  N.  By.  Co.  V.  State  (1899),  75  Tex.,  356,  quoted  from  ante,  n.  91. 

97  Compare  also  Wilson  v.  Gaines  (1877),  9  Baxt.  (Tenn.),  546,  550-551,  Turney, 
J. :  "  The  use  in  the  statutes  of  two  only  of  the  words  of  the  constitution,  i.e., 
'rights'  and  'privileges,'  and  the  omission  to  employ  either  of  the  other  two  fol- 
lowing in  immediate  succession,  viz.,  'immunities'  and  'exemptions,'  either  of  which 
would  have  made  clear  the  construction  claimed  by  complainant,  evidence  a  pur- 


AS  APrLIED  IX  .irDICIAL  REASONING  C3 

"impunity"  has  a  very  similar  connotation.  This  is  made  evident  by 
the  interesting  discriminations  of  Loi-d  < 'hanffllor  Finch  in  Skilton 
V.  Skelton,^^  a  case  decided  iu  1677  : 

''But  this  I  Avould  by  no  means  allow,  that  eipiity  slionld  t-nlarfire 
the  restraints  of  the  disabilities  introdnceil  by  .ict  of  parliaim-nt ;  and 
as  to  the  granting  of  injunctions  to  stay  waste.  1  took  a  distinction 
where  tenant  hath  only  impii)ntat<  )n,  ami  where  he  hath  jus  in  arhori- 
bus.  If  the  tenant  have  only  a  bare  indemnity  or  (S(  niption  from  an 
action  (at  law),  if  he  committed  waste,  there  it  is  lit  he  should  be 
restrained  by  injunction  from  committing  it.'"''-' 


In  the  latter  part  of  the  preceding  discussion,  eight  conceptions  of 
the  law  have  been  analyzed  and  comj)ared  in  some  detail,  the  ]iurpose 
having  been  to  exhibit  not  only  their  inti-insic  iinaning  and  scope,  bnt 
also  their  relations  to  one  another  and  the  methods  by  which  they 
are  applied,  in  judicial  reasoning,  to  the  solution  of  concrete  problems 
of  litigation.  Before  concluding  this  l)ranch  of  the  discussion  a 
general  suggestion  may  be  ventured  as  to  the  great  practical  impor- 
tance of  a  clear  appreciation  of  the  distinctions  and  discriminations 
set  forth.  If  a  homely  metaphor  be  permitted,  these  eight  concep- 
tions,— rights  and  duties,  privileges  and  no-rights,  powers  and  lia- 
bilities, iunnunities  and  disabilities, — seem  to  be  what  may  be  called 

posed  intention  on  the  part  of  the  legislature  not  to  grant  the  benefit  claimed  by 
the  bill. ' ' 

Only  very  rarely  is  a  court  found  seeking  to  draw  a  subtle  distinction  between 
an  immunity  and  an  exemption.  Thus,  in  a  recent  case,  Strah^n  v.  Woync  Co. 
(June,  1913),  142  N.  W.,  678,  680  (Neb.),  Mr.  Justice  Barnes  said:  "It  has  been 
held  by  the  great  weight  of  authority  that  dower  is  not  immune  (from  the  inherit- 
ance tax)  because  it  is  do-wer,  but  because  it  .  .  .  belonged  to  her  inchoately 
during  (the  husband's)  life.  .  .  .  Strictly  speaking,  the  widow's  share  should  be 
considered  as  immune,  rather  than  exempt,  from  an  inheritance  tax.  It  is  free, 
rather  than  freed,  from  such  tax. ' ' 

s»8  (1677)  2  Swanst.,  170. 

99  In  Skelton  v.  Skelton,  it  will  be  observed,  the  word  "  impuniti/"  and  the  word 
"exemption"  are  used  as  the  opposite  of  UohiUtu  to  the  jtowers  of  a  plaintiff  in  an 
action  at  law. 

For  similar  recent  instances,  see  VaclKr  S-  Sous,  Limit nl  v.  Loudon  Socielii  of 
Compositors  [1913]  A.  C,  107,  118,  125  (per  Lord  Macnaghten :  "Now  there  i.s 
nothing  absurd  in  the  notion  of  an  association  or  body  enjoying  immunity  from 
actions  at  law;"  per  Lord  Atkinson:  "Conferring  on  the  trustees  immunity  as 
absolute,"  etc.). 

Compare  also  Baiilics  v.  Bi.shop  of  Loudon  [lOl.T]  1  Ch..  127.  139.  140.  per 
Hamilton,  L.  J.  [Compare  also  the  remarks  of  Swinfen  Eady,  J.,  in  ThornhtU  v. 
Weeks  [1913]  1  Ch.,  438,  442.] 

For  instances  of  the  apt  use  of  the  term  "disability"  as  equivalent  to  tJie  nega- 
tion of  legal  power,  see  Poury  v.  llordcm  [1900]  1  Ch..  492.  495;  Sheridan  v.  Eldrn 
(1862),  24  N.  Y.,  2S1,  384. 


64  FUNDAMENTAL  LEGAL  CONCEPTIONS 

"the  lowest  common  denominators  of  the  law."  Ten  fractions  (1-3, 
2-5,  etc.)  may,  superficially,  seem  so  different  from  one  another  as  to 
defy  comparison.  If,  however,  they  are  expressed  in  terms  of  their 
lowest  common  denominators  (5-15,  6-15,  etc.),  comparison  becomes 
easy,  and  fundamental  similarity  may  be  discovered.  The  same  thing 
is  of  course  true  as  regards  the  lowest  generic  conceptions  to  which 
any  and  all  "legal  quantities"  may  be  reduced. 

Reverting,  for  example,  to  the  subject  of  powers,  it  might  be  diffi- 
cult at  tirst  glance  to  discover  any  essential  and  fundamental  simi- 
larity between  conditional  sales  of  personalty,  escrow  transactions, 
option  agreements,  agency  relations,  powers  of  appointment,  etc.  But 
if  all  these  relations  are  reduced  to  their  lowest  generic  terms,  the 
conceptions  of  legal  power  and  legal  liability  are  seen  to  be  domi- 
nantly,  though  not  exclusively,  applicable  throughout  the  series.  By 
such  a  process  it  becomes  possible  not  only  to  discover  essential  simi- 
larities and  illuminating  analogies  in  the  midst  of  what  appears  super- 
ficially to  be  infinite  and  hopeless  variety,  but  also  to  discern  common 
principles  of  justice  and  policy  underlying  the  various  jural  problems 
involved.  An  indirect,  yet  very  practical,  consequence  is  that  it  fre- 
quently becomes  feasible,  by  virtue  of  such  analysis,  to  use  as  persua- 
sive authorities  judicial  precedents  that  might  other^nse  seem 
altogether  irrelevant.  If  this  point  be  valid  with  respect  to  powers, 
it  would  seem  to  be  equally  so  as  regards  all  of  the  other  basic  con- 
ceptions of  the  law.  In  short,  the  deeper  the  analysis,  the  greater 
becomes  one 's  perception  of  fundamental  unity  and  harmony  in 
the  law."° 

Wesley  Newcomb  Hohfeld. 

Stanford  University,  California. 

100  The  next  article  in  the  present  series  •will  discuss  the  distinctions  between 
legal  and  equitable  jural  relations;  also  the  contrast  between  rights,  etc.,  in  rem, 
and  rights,  etc.,  in  personam.  The  supposed  distinctions  between  substantive  and 
adjective  jural  relations  will  also  be  considered, — chiefly  with  the  purpose  of  show- 
ing that,  so  far  as  the  intrinsic  and  essential  nature  of  those  relations  is  concerned, 
the  distinctions  commonly  assumed  to  exist  are  imaginary  rather  than  real.  Finally, 
some  attention  will  be  given  to  the  nature  and  analysis  of  complex  legal  inter- 
ests, or  aggregates  of  jural  relations.  [As  an  examination  of  the  next  essay  will 
reveal,  the  "next  article"  deals  chiefly  with  rights,  etc.,  in  personam  and  rights, 
etc.,  in  rem.  The  author's  untimely  death  prevented  the  carrying  out  of  the 
remainder  of  the  plan. — Ed.] 


FUXDAMEXTxVL  LEGAL  COXCEPTIOXS  AS 
APPLIED  IX  JI^DU'IAL  UEASOXIXG^ 

II 

The  present  discussion,  whilo  intondod  to  be  intrinsienlly  complete 
so  far  as  intelligent  and  convenient  perusal  is  concci'iKMl.  i-epresents, 
as  originally  planned,  a  continuation  of  an  article  which  appeared 
under  the  same  title  more  than  three  years  ago.-  It  therefore  seems 
desirable  to  indicate,  in  very  general  form,  the  scope  and  purpose  of 
the  latter.  The  main  divisions  were  entitled :  Legal  Conceptions 
Contrasted  Avith  Xon-Legal  Conceptions:  Operative  Facts  Contrasted 
with  Evidential  Facts;  and  Fundamental  Jural  Relations  Contrasted 
with  One  Another.  The  jural  relations  analyzed  and  discussed  under 
the  last  subtitle  were,  at  the  outset,  grouped  in  a  convenient  "scheme 
of  opposites  and  correlatives" ;•'•  and  it  will  greatly  facilitate  the 
presentation  of  the  matters  to  be  hereafter  considered  if  that  scheme 
1>e  reproduced  at  the  present  point : 

Jural  Opposites  ^         .   , 

)  no-right 

T       ^  f        14-  (I'igl^t 

Jural  Correlatives  " 

C^iity 

The  great  practical  importance  of  accurate  thought  and  precise 
expression  as  regards  basic  legal  ideas  and  their  embodiment  in  a 
terraiuologj^  not  calculated  to  mislead  is  not  always  fully  realized — 

1  Copyright,  ]917,  l)y  Wesley  Xewcomb  ITohfeM.  The  suhstiince  of  this  article, 
with  some  expansion  aud  nuich  additional  illustrative  material  from  judicial 
opinions,  will  form  part  of  a  volume  to  appear  shortly  under  Mie  same  title  as  that 
here  given.     [This  essay  appeared  in  (1917)  26  Yale  Law  Journal,  710. — Ed.] 

-  (1913)  2.3  Yale  Law  Journal,  lO,  59.  One  of  the  <hief  purposes  of  this  earlier 
article  was  to  establish  a  firm  foundation  for  the  analysis  and  discussion  of  com- 
plex jural  interests,  or  aggregates  of  jural  relations. — the  interest  of  the  cestui 
que  trust  having  been  more  especially  in  view.  See  (1913)  23  Yale  Law  Journal, 
16-20,  and  notes.  See  pp.  64  and  23-27,  supra.  This  last-mentioned  subject  receives 
some  incidental  consideration  in  the  pages  following;  Init  a  more  adequate  treat- 
ment must  be  reserved  for  another  occasion. 

3  See  (1913)  23  Yale  Law  Journal,  16,  30  ff..  where  the  individual  conceptions 
represented  in  the  scheme  are  treated  at  length.     See  p.  36,  supra. 


privilege 

JKjwer 

immunity 

duty 

disability 

liability 

privilege 

power 

immunity 

no-right 

liabilitv 

disal)ilitv 

66  FUNDAMENTAL  LEGAL  CONCEPTIONS 

especially  by  the  student  not  yet  far  advanced  in  his  legal  work ;  and 
it  is  even  true  that  many  an  experienced  lawyer  has  all  too  thought- 
lessly assumed  that  those  matters  usually  considered  in  works  on 
so-called  "jurisprudence"  are  merely  "academic"  in  character  and 
devoid  of  substantial  utility  for  the  practitioner  or  judge.  In  order 
to  dissipate,  if  possible,  this  fallacious  notion — one  so  demonstrably 
unfortunate  in  its  consequences  as  regards  all  departments  of  the 
law* — the  eight  conceptions  represented  in  the  above  scheme  were 
analyzed  and  compared  in  great  detail,  the  purpose  having  been  not 
only  to  exhibit  their  intrinsic  meaning  and  scope  and  their  relations  to 
one  another,  but  also  to  exemplify  the  methods,  both  good  and  bad,  by 
which  they  are  actually  applied  m  judicial  reasoning  to  the  solution 
of  concrete  problems  of  litigation.     The  purpose  last  indicated  must 

4  See  Mr.  Justice  Holmes,  The  Path  of  the  Law,  (1897)  10  Harvard  Law  Eeview, 
456,  474-475 : 

"Jurisprudence,  as  I  look  at  it,  is  simply  law  in  its  most  generalized  part. 
Every  effort  to  reduce  a  case  to  a  rule  is  an  effort  of  jurisprudence,  although  the 
name  as  used  in  English  is  confined  to  the  broadest  rules  and  most  fundamental 
conceptions.  One  mark  of  a  great  lawyer  is  that  he  sees  the  application  of  the 
broadest  rules.  There  is  a  story  of  a  Vermont  justice  of  the  peace  before  whom  a 
suit  was  brought  by  one  farmer  against  another  for  breaking  a  churn.  The 
justice  took  time  to  consider,  and  then  said  that  he  had  looked  through  the  statutes 
and  could  find  nothing  about  churns,  and  gave  judgment  for  the  defendant.  The 
same  state  of  mind  is  shown  in  all  our  common  digests  and  text-books.  Applica- 
tions of  rudimentary  rules  of  contract  or  tort  are  tucked  away  under  the  head 
of  Eailroads  or  Telegraphs  or  go  to  swell  treatises  on  historical  subdivisions,  such 
as  Shipping  or  Equity,  or  are  gathered  under  an  arbitrary  title  which  is  thought 
likely  to  appeal  to  the  practical  mind,  such  as  Mercantile  Law.  If  a  man  goes 
into  law  it  pays  to  be  a  master  of  it,  and  to  be  a  master  of  it  means  to  look 
straight  through  all  the  dramatic  incidents  and  to  discern  the  true  basis  for 
prophecy.  Therefore,  it  is  well  to  have  an  accurate  notion  of  what  you  mean  by 
law,  by  a  right,  by  a  duty,  by  malice,  intent,  and  negligence,  by  ownership,  by 
possession,  and  so  forth.  I  have  in  my  mind  cases  in  which  the  highest  courts 
seem  to  me  to  have  floundered  because  they  had  no  clear  ideas  on  some  of  these 
themes. ' ' 

The  following  observations  of  the  same  learned  judge  are  also  deserving  of 
consideration : 

"As  long  as  the  matter  to  be  considered  is  debated  in  artificial  terms  there  is 
a  danger  of  being  led  by  a  technical  definition  to  apply  a  certain  name,  and  then 
to  deduce  consequences  which  have  no  relation  to  the  grounds  on  which  the  name 
was  applied."  Mr.  .Justice  Holmes  in  G\iy  v.  Donald  (1906),  203  U.  S.,  399,  406; 
27  Sup.  Ct.  Eep.,  63,  64. 

"It  is  one  of  the  misfortunes  of  the  law  that  ideas  become  encysted  in  phrases 
and  thereafter  for  a  long  time  cease  to  provoke  further  analysis."  Mr.  Justice 
Holmes,  in  Hyde  v.  United  States  (1911),  225  U.  S.,  347,  391. 

Compare  the  remarks  of  Lord  Kinnear,  in  Banh  of  Scotland  v.  Macleod  [1914] 
A.  C,  311,  324.     He  there  endorses  Lord  Westbury's  declaration  that  "there  is 


AS  APPLIED  IX  .(I'DiriAL  RFASOXTNG  G7 

in  the  present  discussion,  as  in  the  foriiuT  one,  ])e  the  justification  for 
frequent  concrete  examples  of  judicial  usagre.  and  henc<*  for  liberal 
quotations  from  apposite  judicial  opinions.  Instructive  examples, 
whether  by  way  of  model  or  by  way  of  warning,  must  also  be  drawn 
occasionally  from  the  works  of  well-known  legal  authors.' 

In  the  following  pages  it  is  proposed  to  begin  the  discussion  of 
certain  important  classifications  which  are  applicable  to  each  of  the 
eight  individual  jural  conceptions  represented  in  the  above  scheme. 
Some  of  such  overspreading  classifications  consist  of  the  following: 
relations  in  personam  ("paucitar'  relations),  and  relations  in  rem 
("multital"  relations)  ;  common  (or  general)  relations  and  special 
(or  particular)  relations;  consensual  relations  and  constructive  rela- 
tions; primary  relations  and  secondary  relations;  subst-antive  relations 
and  adjective  relations;  perfect  relations  and  imperfect  relations; 
concurrent  relations  (i.e.,  relations  concurrently  legal  and  ecjuitable) 
and  exclusive  relations  (i.e.,  relations  exclusively  equitable).*  As  the 
bulk  of  our  statute  and  case  law  becomes  greater  and  greater,  these 
classifications  are  constantly  increasing  in  their  practical  importance : 
not  only  because  of  their  intrinsic  value  as  mental  tools  for  the  compre- 
hending and  systematizing  of  our  complex  legal  materials,  but  also 
because  of  the  fact  that  the  opposing  ideas  and  terms  involved  are  at 
the  present  time,  more  than  ever  before,  constituting  part  of  the 
formal  foundation  of  judicial  reasoning  and  decision.'     Owing  to 

not  a  more  fruitful  source  of  error  in  law  than  the  inaccurate  use  of  language," 
and  Lord  Mansfield's  observation  that  "nothing  in  law  is  so  apt  to  mislead  as  a 
metaphor."     The  learned  judge  also  remarks: 

"The  fallacy  consists  in  using  legal  terms  in  a  popular  or  metaphorical  sense 
and  yet  affixing  to  them  all  the  legal  consequences  which  would  attach  to  their  use 
in  a  strictly  technical  sense." 

See  also,  as  regards  confusion  of  thought  resulting  from  loose  or  ambiguous 
legal  terms.  Field,  J.,  in  Morgan  v.  Louisiana  (1876),  93  U.  S.,  217,  223;  and  Peck- 
ham,  J.,  in  Phoenix  Ins.  Co.  v.  Tennessee  (1895),  161  U.  S.,  174,  177,  17S. 

5  Owing,  however,  to  limitations  of  space,  it  has  proved  necessary  to  exclude  at 
this  time  a  large  part  of  the  available  illustrative  material  originally  intended  to  be 
presented. 

6  For  an  explanation  of  the  classification  of  .iural  relations  as  "concurrent"  and 
"exclusive"  see  the  writer's  article  entitled.  The  Relations  between  Equity  and 
Law,  (1913)   11  Michigan  Law  Review,  537,  553,  569,  printed  infra. 

See  also  the  article  of  the  writer's  friend  and  colleagiie.  Professor  Walter 
Wheeler  Cook,  The  AlienahUiiii  of  Choses  in  Action — A  Bepbj  to  Professor  Wil- 
liston,  (1917)  30  Harvard  Law  Review,  449,  460  ff. 

7  In  this  sentence  the  word  * '  formal ' '  must  not  be  ignored ;  for,  in  emphasizing 
for  the  time  being  the  formal  and  analytical  side  of  legal  problems,  the  writer 
would  not  be  thought  to  underestimate  the  great  imporfan.'e  of  other  phases  of 
the  law,  both  scientific  and  practical.     He  has  had  occasion  elsewhere  to  discuss 


68  FUNDAMENTAL  LEGAL  CONCEPTIONS 

limitations  of  space  the  following  pages  will  be  confined  to  the  first 
classification  above  indicated,  viz.,  relations  in  personam  and  relations 
in  rem. 

The  phrases  in  personam  and  in  rem,  in  spite  of  the  scope  and  the 
variety  of  the  situations  to  which  they  are  commonly  applied,  are 
more  usually  assumed  by  lawyers,  judges,  and  authors  to  be  of  unvary- 
ing meaning  and  free  of  ambiguities  calculated  to  mislead  the  unwary. 
The  exact  opposite  is,  however,  true;  and  this  has  occasionally  been 
explicitly  emphasized  by  able  judges  whose  warnings  are  worthy  of 
notice.  Thus,  in  Tyler  v.  Court  of  Registration,^  Mr.  Chief  Justice 
Holmes  says,  as  regards  the  expression  in  rem,  that  "no  phrase  has 
been  more  misused";  and  in  the  recent  case  of  Hooh  v.  Hoffman,^  Mr. 
Justice  Franklin,  in  the  course  of  a  scholarly  opinion  involving  the 
nature  of  "proceedings  in  rem,"  finds  it  necessary  to  characterize  the 
expression  "jus  in  rem "  as  " somewhat  obscure  and  ambiguous. ' '  The 
thoughtful  judge  last  named  is,  however,  kind  enough  to  advise  us 
of  the  one  and  only  remedy  for  this  difficulty,  and  prompt  to  attempt 
that  remedy  in  his  own  opinion.    His  words  are  worthy  of  quotation : 

"It  is  no  more  of  a  solecism  to  say  immovable  personal  property 
than  it  is  to  say  removable  fixtures,  nor  more  contradicting  than  in 
the  division  of  actions  to  use  the  term  'in  rem,'  when,  under  the  par- 
ticular state  of  facts,  the  action  is  primarily  'in  personam.'  In  the 
development  of  the  law  it  is  seldom  possible,  or,  when  possible,  seldom 
expedient,  to  discard  established  terms.  In  this  connection  an  observa- 
tion by  Mr.  Justice  Holmes  is  peculiarly  applicable  : 

"  '  As  long  as  the  matter  to  be  considered  is  debated  in  artificial 
terms,  there  is  danger  of  being  led  hy  a  technical  definition  to  apply 
a  certain  name,  and  then  to  deduce  consequences  which  have  no  rela- 
tion to  the  grounds  on  which  the  name  was  applied.'  Guy  v.  Donald, 
203  U.  S.,  406. 

"Instead  of  rejecting  convenient  terms  because  they  are  ambiguous 
or  not  comprehensive,  it  is  better  to  explain  their  meanings,  or,  in  the 
language  of  old  Hobbes,  'to  snutf  them  with  distinctions  and  defini- 
tions, '  so  as  to  give  a  better  light. '  '^*^ 

All  this  being  so,  we  are  forced  to  recognize  at  the  very  outset  that 
the  antithetical  pair  of  expressions,  in  personam  and  in  rem,  is  con- 
more  comprehensively  the  fundamental  aspects  of  the  law,  including  historical,  or 
genetic,  jurisprudence;  comjiarative,  or  eclectic,  jurisprudence;  formal,  or  analyti- 
cal, jurisprudence;  critical,  or  teleological,  jurisprudence;  legislative,  or  construc- 
tive, jurisprudence;  empirical,  or  functional,  jurisprudence.  See  A  Vital  School  of 
Jurispnidence  and  Laic,  Proc.  of  Assn.  of  Am.  Law  Schools  for  1914,  pp.  76-139. 
[Reprinted  infra. — Ed.] 

8  (1900)   175  Mass.,  71,  76. 

3  (1915)  16  Ariz.,  540,  554. 

10  (1915)  16  Ariz.,  540,  558. 


AS  APPLIED  IX  JI'DICIAL  REASONING  69 

stantly  ]mng  eiiiployed  as  a  l)asis  for  classifying  at  least  four  distinct 
matters;  and  that  the  respective  meanings  of  the  expression  in  per- 
sonam and  the  expression  in  rem  arc  not  tlie  same  for  all  of  the 
different  situations  involved : 

First,  we  have  a  fundamental  classification  of  primary  rights  as 
rights  in  pcrsonatn,  and  rights  in  rem;  second,  there  is  the  well-known 
classitication  of  all  judicial  proceedings  into  proceedings  or  actions 
in  persona}n  and  proceedings  or  actions  in  rt  m ;  third,  there  exists  the 
closely  related  classification  of  judgments  and  decrees  (and  the  cor- 
responding jurisdictions  of  courts),  some  being  called  judgments  or 
decrees  in  personam,  and  the  others  judgments  or  decrees  in  rem; 
fourth,  assuming  a  judgment  or  decree  in  pusonam  to  have  been 
obtained  as  the  result  of  what  may  be  called  the  "primary  stage"  of 
the  typical  judicial  proceeding,  the  question  of  its  so-called  "enforce- 
ment"— really  the  "secondary  stage"  of  the  judicial  proceeding — 
comes  into  view;"  and  such  enforcement  is  said  to  be  either  in  per- 
sonam, as  in  the  case  of  the  typical  contempt  proceeding  employed  to 
coerce  performance  of  a  decree  in  e(iuity,  or  in  rem,  as  in  the  case  of 
tlie  typical  execution  sale  following  upon  an  ordinary  legal  judgment 
in  personam.^'-    Anyone  who  has  seriously  observed  and  reflected  on 

11  Compare,  as  regards  the  significance  and  propriety  of  these  terms,  ' '  primary 
stage"  and  "secondary  stage"  as  applied  to  a  suit  in  equity  or  an  action  at 
law.  Lord  Hardwicke,  in  Penn  v.  Lord  Baltimore  (1750),  1  Yes.,  444,  454: 

"As  to  the  court's  not  inforcing  the  execution  of  their  judgment;  if  they 
could  not  at  all,  I  agree,  it  would  be  in  vain  to  make  a  decree;  and  that  the  court 
cannot  inforce  their  own  decree  in  rem,  in  the  present  case:  but  that  is  not  an 
objection  against  making  a  decree  in  the  cause;  for  the  strict  primary  decree  in 
this  court  as  a  court  of  equity  is  in  personam,  long  before  it  was  settled,  whether 
this  court  could  issue  [««■]  to  put  into  possession  in  a  suit  of  lands  in  England; 
which  was  first  begun  and  settled  in  the  time  of  James  I.  but  ever  since  done  by 
injunction  or  writ  of  assistant  to  the  sheriff:  but  the  court  cannot  to  this  day  as 
to  lands  in  Ireland  or  the  plantations.  In  Lord  King's  time  in  the  case  of 
Richardson  v.  Hamilton,  Attorney  General  of  Pennsylvania,  which  was  a  suit  of 
land  and  a  house  in  the  to\\-n  of  Philadelphia,  the  court  made  a  decree,  though  it 
could  not  be  inforced  in  rem.  In  the  case  of  Lord  Anglesey  of  land  lying  in  Ire- 
land, I  decreed  for  distinguishing  and  settling  the  parts  of  the  estate,  though 
impossible  to  inforce  that  decree  t"  rem,  but  the  party  being  in  England,  I  could 
inforce  it  by  process  of  contempt  in  personam  and  sciiucstration.  which  is  the  proper 
jurisdiction  of  this  court." 

It  is  interesting  to  observe  that  Lord  Hardwicke  speaks  of  the  writ  of  assistance 
(under  which  an  equity  plaintiff  might  through  the  sheriff  be  put  into  actual 
possession  of  land)  as  a  means  by  which  a  court  of  equity  could  at  times  "enforce 
in  rem"  the  "strict  primary  decree  i"  personam." 

12  For  an  able  and  searching  discussion  of  proceedings  im  personam  and  pro- 
ceedings  in    rem,  see   the  series   of   articles   by   Professor   Walter   Wheeler   Cook 


70  •  FUNDAMENTAL  LEGAL  CONCEPTIONS 

the  interrelatiou  of  ideas  and  language  must  realize  how  words  tend 
to  react  upon  ideas  and  to  hinder  or  control  them.  More  specifically, 
it  is  overwhelmingly  clear  that  the  danger  of  confusion  is  especially 
great  when  the  same  term  or  phrase  is  constantly  used  to  express  two 
or  more  distinct  ideas.  Professor  Holland,  having  in  mind,  as  regards 
this  psychological  phenomenon,  a  particular  instance  not  now  before 
us, — viz.,  the  well-knoun  ambiguity  of  the  Latin  jus,  the  German 
RecJit,  the  Italian  diritto,  and  the  French  droit,  terms  used  to  indicate 
both  "'law"  as  such  and  "a  right"  considered  as  a  concrete  relation 
created  by  law, — does  not  exaggerate  in  the  least  when  he  says : 

"If  the  expression  of  widely  different  ideas  by  one  and  the  same 
term  resulted  only  in  the  necessity  for  these  clumsy  periphrases,  or 
obviously  inaccurate  paraphrases,  no  great  harm  would  be  done ;  but 
unfortunately  the  identity  of  terms  seems  irresistibly  to  suggest  an 
identity  between  the  ideas  which  are  expressed  by  them."^^ 

No  doubt  this  psychological  and  linguistic  principle — what  might 
be  called  "the  principle  of  linguistic  contamination" — explains  why 
certain  well-known  legal  authors  have  assumed,  with  unfortunate 
effect  on  their  reasoning  and  argument,  that  the  contrasted  pairs  of 
terms  in  personam  and  in  rem  have  the  same  intrinsic  meaning  in  each 
of  the  four  cases  above  mentioned,  and  therefore  represent  throughout 
a  precisely  similar  basis  of  classification ;  also  that  there  is  some  formal 
and  symmetrical  interdependence  between  the  four  classifications  pre- 
sented,— e.g.,  that  primary  rights  in  rem  are  such  as  may  be  "en- 
forced," or  vindicated,  by  proceedings  and  judgments  in  rem,  or, 
similarly,  that  primary  rights  in  personam  are  such  as  can  be  "en- 
forced," or  vindicated,  only  by  actions  or  proceedings  in  personam. 

entitled,  The  Powers  of  Courts  of  Equity,  (1915)  15  Columbia  Law  Eeview,  37, 
106,  228. 

See  also  the  present  writer's  article.  The  delations  between  Equity  and  Law, 
(1913)   11  Michigan  Law  Eeview,  537,  passim. 

13  Holland,  Jurisprudence  (10th  ed.,  1906),  pp.  80-81. 

Compare  Austin,  Jurisprudence  (5th  ed.,  1885),  Vol.  I,  pp.  285-286,  note, 
referring  to  the  same  ambiguity  as  Holland,  and  adding: 

' '  Since  the  strongest  and  wariest  minds  are  often  ensnared  by  ambiguous  words, 
their  (the  Germans')  confusion  of  those  disparate  objects  is  a  venial  error." 

Compare  also  Austin,  Jurisprudence,  Yol.  I,  p.  322,  note: 

' '  In  the  language  of  English  jurisprudence,  facts  or  events  which  are  contracts 
quasi  or  uti,  are  styled  implied  contracts,  or  contracts  which  the  law  implies:  that 
is  to  say,  contracts  quasi  or  uti,  and  genuine  though  tacit  contracts,  are  denoted 
by  a  common  name,  or  by  names  nearly  alike.  And,  consequently,  contracts,  quasi 
or  uti,  and  implied  or  tacit  contracts,  are  commonly  or  frequently  confounded  by 
English  lawyers.  See,  in  particular,  Sir  William  Blaekstone's  Commentaries, 
B.  II.  Ch.  30.  and  B.  III.  Ch.  9." 


AS  APPLIED  IX  JUDICIAL  REASONING  71 

At  a  later  point  some  of  tlu-se  prol)l<'iiis  and  fallacies  will  receive 
incidental  treatment  in  connection  with  the  main  thread  of  tiie  dis- 
cussion, and  it  will  thus  be  possible  to  give  more  concrete  specifications 
and  examples.  The  chief  purpose  of  the  following  pages  is,  however, 
to  discuss,  directly  and  exhaustively,  only  the  first  of  the  four  general 
classifications  above  outlined,  i.e.,  rights  (or  claims),  privileges, 
powers,  and  immunities  in  personam  and  rights  (or  claims),  privileges, 
powers,  and  immunities  in  rem.  Substituting  what  the  writer  ventures 
to  suggest  as  equivalent  and  more  satisfactory  terms  for  the  phrases 
in  personam  and  in  rem,  we  shall  have  to  deal  srriatim  with  eight 
classifications,  as  follows:  1.  paucital  rights  (or  claims)  an<l  multital 
rights  (or  claims);  2.  paucital  privileges  and  multital  i)rivil<'ges; 
3.  paucital  powers  and  multital  powers;  4.  paucital  iuununities  and 
multital  immunities;  5.  paucital  no-rights  and  multital  no-rights; 
6.  paucital  duties  and  multital  duties;  7.  paucital  disabilities  and 
multital  disabilities;  8.  paucital  liabilities  and  multital  liabilities. 
Each  of  these  eight  definite  classifications  must,  for  the  sake  of  clear- 
ness, receive  somewhat  separate  treatment.  Owing,  however,  to  limita- 
tions of  space,  the  present  article  will  deal  chiefly  with  the  first  sub- 
division, i.e.,  paucital  rights,  or  claims,  and  multital  rights,  or  claims. 
As  more  fully  shown  in  the  former  article,  the  word  "right"  is 
used  generically  and  indiscriminately  to  denote  any  sort  of  legal  ad- 
vantage, whether  claim,  privilege,  power,  or  immunity. ^^  In  its 
narrowest  sense,  however,  the  term  is  used  as  the  correlative  of  duty  ;'^ 
and,  to  convey  this  meaning,  the  synonym  "claim"  seems  the  best.^^ 

1*  For  judicial  opinions  recognizing  the  broad  and  generic  significance  of  this 
term  Mhen  loosely  used,  see  the  authorities  discussed  in  (1913)  23  Yale  Law 
Journal,  16,  30  ff. ;  see  p.  36  ff.,  infra. 

Compare  also,  to  similar  effect,  Slater,  J.,  in  Shaw  v.  Proffilt  (1910),  57  Or., 
192,  201: 

"It  is  strenuously  urged  by  defendant's  counsel  that,  under  the  jdeadings  in  this 
case,  plaintiff  stands  on  a  bare  parol  license,  which  he  claims  to  have  obtained  from 
the  defendant  and  his  predecessors  in  interest  and  that,  therefore,  plaintiff  is 
precluded  from  obtaining  the  full  effect  of  his  evidence.  We  do  not  agree  with 
such  restricted  interpretation  of  the  language  found  in  the  t-omplaint.  It  is 
averred  that  plaintiff  obtained  the  'right'  as  well  as  the  'consent,  permission  and 
license  of  defendant  and  his  predecessors.'  The  word  'right'  denotes,  among 
other  things,  'property,'  'interest,'  'power,'  'prerogative.'  'immunity,'  and  'privi- 
lege,' and  in  law  is  most  frequently  applied  t^  property  in  its  restricted  sense." 

"See  (1913)  23  Yale  Law  Journal,  16,  31-32;  see  p.  38,  infra. 

16  In  this  connection,  the  language  of  Mr.  Justice  Stayton.  thounh  not  recom- 
mended for  precision,  may  well  le  compared: 

"A  right  has  been  well  defined  to  be  a  well-founded  claim,  and  a  wcUfounded 
claim  means  nothing  more  nor  less  than  a  claim  rcco(ini:fd  or  secured  hji  law. 

"Eights  which  pertain  to  persons,  other  than  such  as  are  termed  natural  rights, 


72  FUNDAMENTAL  LEGAL  CONCEPTIONS 

In  what  follows,  therefore,  the  term  "right"  will  he  used  solely  in 
that  very  limited  sense  according  to  which  it  is  the  correlative  of  duty. 
It  is  hoped  that  the  meaning  and  importance  of  this  needful  dis- 
crimination may  gain  in  concreteness  and  clearness  as  further  details 
and  examples  come  into  view. 

It  is  necessary  at  this  point  to  venture  a  preliminary  explanation 
of  the  division  or  classification  now  before  us — confessing  at  once  that 
it  represents  a  departure  from  accepted  modes  of  statement  or  defini- 
tion on  the  part  of  learned  authors  and  judges.  It  will  then  remain 
for  the  more  detailed  discussion  and  argument  to  show,  if  possible, 
that  the  currently  received  explanations  are  not  only  essentially  faulty 
as  regards  analysis  but  also  seriously  misleading  for  the  very  practical 
purpose  of  solving  legal  problems  as  swiftly  and  accurately  as  possible. 

A  paucital  right,  or  claim  (right  in  personam),  is  either  a  unique 
right  residing  in  a  person  (or  group  of  persons)  and  availing  against 
a  single  person  (or  single  group  of  persons)  ;^^  or  else  it  is  one  of  a 
few  fundamentally  similar,  yet  separate,  rights  availing  respectively 
against  a  few  definite  persons.^®  A  multital  right,  or  claim  (right  in 
rem),  is  always  one  of  a  large  class  of  fundamentally  similar  yet 
separate  rights,  actual  and  potential,^^  residing  in  a  single  person  (or 
single  group  of  persons)  but  availing  respectively  against  persons 
constituting  a  very  large  and  indefinite  class  of  people.-'" 

are  essentially  the  creatures  of  municipal  law,  written  or  unwritten,  and  it  must 
necessarily  be  held  that  a  right,  in  a  legal  sense,  exists,  when  in  consequence  of 
given  facts  the  law  declares  that  one  person  is  entitled  to  enforce  against  another 
a  claim  ..."  MelUnger  v.  City  of  Houston  (1887),  68  Tex.,  37,  4.5;  3  S.  W.,  249, 
253. 

>7  The  words  ' '  group  of  persons ' '  are  intended  to  cover  cases  of  so-called 
"joint"  rights  and  duties.  [For  a  brief  discussion  of  the  concept  of  "joint 
rights,"  see  the  Introduction,  supra,  p.  14. — Ed.] 

18  While  the  word  "paucital"  is  suggested  as  the  generic  term  to  cover  all 
rights  in  personam,  the  word  "unital"  would  be  available  to  denote  that  particu- 
lar kind  of  right  in  personam  that  is  "unique"  and  " uncompanioned. " 

19  The  reasons  for  including  the  words  ' '  actual  and  potential ' '  must  be  dis- 
cussed at  a  later  time,  after  a  general  consideration  of  the  distinction  between 
"actual"  and  "potential"  jural  relations. 

20  It  is  not  infrequently  thought  that  the  word  ' '  general ' '  is  both  appropriate 
and  available  to  denote  those  rights,  or  claims,  that  are  here  called  "multital." 
See,  e.g.,  Markby,  Elements  of  Law  (6th  ed.,  1905),  sec.  165.  It  is  submitted, 
however,  that  according  to  the  best  usage  the  term  "general,"  as  applied  to  a 
jural  relation,  indicates  that  the  latter  is  one  of  a  large  class  of  similar  relations 
residing  respectively  in  many  persons,  i.e.,  people  in  general.  For  example,  any 
duty  correlating  with  a  multital  right  would  be  a  general,  or  common,  duty.  The 
right  of  a  person  not  to  be  struck  by  another  is  both  multital  and  general. 

This  matter  will  receive  more  complete  consideration  at  a  later  time. 


AS  APPLIED  IX  JUDICIAL  REASONING  73 

Probably  all  would  agree  substantially  on  the  meaning  and  signifi- 
cance of  a  right  in  personam,  as  just  explained;  and  it  is  easy  to  give 
a  few  preliminary  examples:  If  H  owes  A  a  thousand  dollars,  A  has 
an  affirmative  right  in  jyersonam,  or  paucital  right,  that  P>  shall  do 
what  is  necessary  to  transfer  to  A  the  legal  ownership  of  that  amount 
of  money.  If,  to  put  a  contrasting  situation,  A  already  lias  title  to 
one  thousand  dollars,  his  rights  against  others  in  relation  tiiereto  are 
multital  rights,  or  rights  in  rem.  In  the  one  case  the  money  is  owed 
to  A  ;  in  the  other  case  it  is  owned  by  A.-^  If  Y  has  contracted  to  work 
for  X  during  the  ensuing  six  months.  X  has  an  affirmative  right  in 
personam  that  Y  shall  render  such  service,  as  agreed.  Similarly  as 
regards  all  other  contractual  or  (luasi-contractual  rights  of  this  ciiar- 
acter.  On  the  other  hand,  there  may  occasionally  be  rights  in  per- 
sonam of  a  negative  tenor  or  content.  Thus  if  K,  a  distinguished 
opera  singer,  contracts  with  J  that  the  former  will  not  for  the  next 
three  months  sing  at  any  rival  opera  house.  J  has  a  negative  right  in 
personam  against  K;  and  the  latter  is  under  a  correlative  negative 
duty.  In  this,  as  in  other  cases  of  rights  in  the  sense  of  claims,  the 
right  of  J  is  but  one  phase  of  the  total  relation  between  J  and  K.  and 
the  duty  of  K  is  another  phase  of  the  same  relation. — that  is.  the  whole 
"right — duty"  relation  may  l)e  viewed  from  different  angles. 

In  contrast  to  these  examples  are  those  relating  to  rights,  or  claims. 
in  rem — i.e.,  multital  rights.  If  A  owns  and  occupies  Whiteacre,  not 
only  B  but  also  a  great  many  other  persons — not  necessarily  all  per- 
sons'-— are  under  a  duty,  e.g.,  not  to  enter  on  A's  land.  A's  right 
against  B  is  a  nuiltital  right,  or  right  in  rem,  for  it  is  simply  one  of  A's 
class  of  similar,  though  separate,  rights,  actual  and  potential,  against 
very  many  persons.    The  same  points  apply  as  regards  A  "s  right  that 

-1  Compare  Pollock  and  Maitlaiul,  Hislorii  of  Eniilish  Law  (2(1  ed.,  1905),  Vol. 
II,  p.  178. 

--  It  is  sometimes  assumed  that  rights  in  rem  (i-oiisiderod  collectively)  are  such 
only  as  avail  against  absolutely  all  persons, — an  idea  fostered  in  part  by  the  fre- 
quently used  expression  "against  all  the  world."  See,  e.g..  Langdell,  Summary  of 
Equity  Pleading  (2d  ed.,  1883),  sec.  184;  Langdell,  Brief  Survey  of  Equity  Juris- 
diction, (1887)  1  Harvard  Law  Review,  60;  Hart.  The  riarc  of  Trust-f  in  Juris- 
prudence, (1912)  28  Law  Quarterly  Review,  290.  296;  Terry,  The  Arrannemcnt  of 
the  Law,  (1917)  17  Columbia  Law  Review,  365.  376.  This  notion  is  not  warranted 
according  to  general  usage.  If,  for  example.  A.  the  owner  of  Blackacre,  has  given 
his  friends  C  and  D  "leave  and  license"  to  enter.  A  has  no  rights  against  C  and  D 
that  they  shall  not  enter;  but  he  has  such  rights  against  persons  in  general;  and 
they  are  clearly  to  be  classified  as  being  "multital"  or  "  t»  rem." 

For  further  phases  of  this  matter,  see  ante.  n.  20;  post,  pp.  102108. 

[Similarly,  compare  the  rights,  etc.,  of  one  wrongfully  in  i»osse9sion :  Jeffries  v. 
Great  Western  By.  (1856),  5  E.  &  B..  802;  The  Wiiikfield  (1902).  P.  42.] 


74  FUNDAMENTAL  LEGAL  CONCEPTIONS 

B  shall  not  commit  a  battery  on  him,  A's  right  that  B  shall  not 
alienate  the  affections  of  A's  wife,  and  A's  right  that  B  shall  not 
manufacture  a  certain  article  as  to  which  A  has  a  so-called  patent. 
Further  examples  of  such  negative"^  multital  rights  will  readily  occur 
to  the  reader.  Numerous  important  instances  will  require  detailed 
consideration  from  time  to  time. 

In  spite  of  the  formal  and  abstract  explanations  already  given,  and 
in  spite  of  the  concrete  examples  added  for  merely  preliminary  pur- 
poses, the  effort  to  give  an  incisive  and  comprehensive  appreciation 
of  the  conceptual  and  linguistic  difficulties  and  dangers  involved  in 
the  expressions  under  consideration  would  doubtless  fail,  at  least  as 
regards  the  inexperienced  student,  unless  considerably  more  were  done 
by  way  of  direct  discussion  of  common  errors.  That  is  to  say,  it  seems 
necessary  to  show  very  concretely  and  definitely  how,  because  of  the 
unfortunate  terminology  involved,  the  expression  ''right  in  rem"  is 
all  too  frequently  misconceived,  and  meanings  attributed  to  it  that 
could  not  fail  to  blur  and  befog  legal  thought  and  argument.  Some 
of  these  loose  and  misleading  usages  will  now  be  considered  in  detail, 
it  being  hoped  that  the  more  learned  reader  will  remember  that  this 
discussion,  being  intended  for  the  assistance  of  law  school  students 
more  than  for  any  other  class  of  persons,  is  made  more  detailed  and 
elementary  than  would  otherwise  be  necessary. 

(a)  A  right  in  rem  is  not  a  right  ''against  a  thing."  In  Hook  v. 
Hoffman-*  we  are  told  by  Mr.  Justice  Franklin,  in  hopeful  vein,  that 
"the  somewhat  obscure  and  ambiguous  expression  'jus  in  rem,'  when 
standing  by  itself,  catches  a  borrowed  clearness  from  the  expression 
'jus  in  personam,'  to  which  it  is  opposed.'*-^  This  is  laudable  opti- 
mism !  It  cannot,  however,  be  shared  by  one  who  has,  in  the  course  of 
many  years,  observed  not  only  the  ways  and  tendencies  of  many 
hundreds  of  intelligent  students,  but  also  the  not  unnatural  slips  of 
the  more  learned.  Any  person,  be  he  student  or  lawyer,  unless  he  has 
contemplated  the  matter  analytically  and  assiduously,  or  has  been  put 
on  notice  by  books  or  other  means,  is  likely,  first,  to  translate  right  in 

23  As  indicated  by  the  examples  given,  multital  rights  are  always  constructive 
rather  than  consensual;  that  is,  they  and  their  correlating  duties  arise  independ- 
ently of  even  an  approximate  expression  of  intention  on  the  part  of  those  con- 
cerned. This  explains,  no  doubt,  why  most,  if  not  all,  of  such  duties  are  negative 
in  character:  it  is  just  and  politic  to  spread  such  merely  negative  duties  broad- 
cast; whereas  precisely'  the  opposite  would  be  true  in  the  case  of  most  kinds  of 
affirmative  duties. 

24  (1915)  3  6  Ariz.,  .540.  55.5. 

25  Compare,  for  precisely  similar  language,  Austin,  Jurisprudence  (5th  ed., 
1885),  Vol.  II,  p.  957. 


AS  APPLIED  IX  JUDICIAL  REASONING  75 

personam  as  a  right  against  a  prrson:  and  then  he  is  almost  sure  to 
interpret  right  i)i  rem,  natnrally  and  syiiiinetrically  as  he  thinks,  as 
a  right  against  a  thing.  Assuming  that  the  division  represented  by 
in  personam  and  in  r(  ni  is  intended  to  be  mutually  exclusive,  it  is 
plausible  enough  to  tliink  also  that  if  a  right  in  personam  is  simply  a 
right  against  a  person,  a  right  in  rem  must  be  a  right  that  is  not 
against  a  person,  but  against  a  thing.  That  is,  the  expression  right  in 
personam,  standing  alone,  seems  to  encourage  the  impression  that  there 
must  be  rights  that  are  not  against  persons.  Then,  of  course,  such  a 
supposed,  though  erroneous,  contrast  is  further  encouraged  by  the 
jjrima  faeie  literal  meaning  of  the  Latin  phrase  in  rem,  considered  per 
se:  for  it  cannot  be  assumed  that  the  average  person  is  acquainted  with 
the  peculiar  history  and  special  meaning  of  that  phrase.  Such  a 
notion  of  rights  in  rem  is,  as  already  intimated,  crude  and  fallacious; 
and  it  can  but  serve  as  a  stumbling-block  to  clear  thinking  and  exact 
expression.  A  man  may  indeed  sustain  close  and  beneficial  physical 
relations  to  a  given  physical  thing:  he  may  phijsicaUij  control  and  use 
such  thing,  and  he  may  physically  exclude  others  from  any  similar 
control  or  enjoyment.  But,  obviously,  such  purely  physical  relations 
could  as  well  exist  quite  apart  from,  or  occasionally  in  spite  of.  the  law 
of  organized  society :  physical  relations  are  wholly  distinct  from  jural 
relations.-'"'  The  latter  take  significance  from  the  law;  and,  since  the 
purpose  of  the  law  is  to  regulate  the  conduct  of  human  beings,  all 
jural  relations  must,  in  order  to  be  clear  and  direct  in  their  meaning, 
be  predicated  of  such  human  beings.  The  words  of  able  judges  may 
be  quoted  as  showing  their  realization  of  the  practical  importance  of 
the  point  now  being  emphasized : 

1900,  Mr.  Chief  Justice  Holmes,  in  Tyler  v.  Court  of  Registration:-'' 

"All  proceedings,  like  all  rights,  are  really  against  persons. 
Whether  they  are  proceedings  or  rights  in  rem  depends  on  the  number 
of  persons  affected."-^ 

-^  As  to  the  prevalent  and  unfortunate  tendency  to  confuse  Irnal  and  nonlcgal 
conceptions,  see  the  more  general  discussion  in  (191.3)  23  Yale  Law  Journal,  16, 
20  ff.,  infra,  p.  27  flf. ;  see  also  post,  n.  34  and  n.  90. 

27  (1900)  175  Mass.,  71,  76. 

28  Compare  also  the  following  from  Mr.  .Justice  Holmes's  opinion: 

"It  is  true  as  an  historical  fact  that  these  sj-mbols  are  used  in  admiralty  pro- 
ceedings, and  also,  again  merely  as  an  historical  fact,  that  the  proceedings  in  nm 
have  been  confined  to  cases  where  certain  classes  of  claims,  although  of  very  divers 
sorts, — for  indemnification  for  injury,  for  wages,  for  salvage,  etc., — are  to  be 
asserted.  But  a  ship  is  not  a  person.  It  cannot  do  a  wrong  or  make  a  contract. 
To  say  that  a  ship  has  committed  a  tort  is  merely  a  shorthand  way  of  saying  that 
you  have  decided  to  deal  with  it  as  if  it  had  committed  one,  because  some  man  has 
committed  one  in  fact.     There  is  no  a  priori  reason  why  any  other  claim  should  not 


76  FUNDAMENTAL  LEGAL  CONCEPTIONS 

1905,  Mr.  Justice  Markby,  Elements  of  Lawr^ 

"If  we  attempt  to  translate  the  phrase  [in  rem]  literally,  and  get 
it  into  our  heads  that  a  thing,  because  rights  exist  w  respect  of  it, 
becomes  a  sort  of  juristical  person,  and  liable  to  duties,  we  shall  get 
into  endless  confusion. "^^ 

What  is  here  insisted  on, — i.e.,  that  all  rights  in  rem  are  against 
persons, — is  not  to  be  regarded  merely  as  a  matter  of  taste  or  prefer- 
ence for  one  out  of  several  equally  possible  forms  of  statement  or 
definition.  Logical  consistency  seems  to  demand  such  a  conception, 
and  nothing  less  than  that.  Some  concrete  examples  may  serve  to 
make  this  plain.  Suppose  that  A  is  the  owner  of  Blackacre  and  X  is 
the  owner  of  Whiteacre.  Let  it  be  assumed,  further,  that,  in  con- 
sideration of  $100  actually  paid  by  A  to  B,-^  the  latter  agrees  with  A 
never  to  enter  on  X's  land,  "Whiteacre.     It  is  clear  that  A's  right 

be  enforced  in  the  same  way.  If  a  claim  for  a  wrong  committed  by  a  master  may 
be  enforced  against  all  interests  in  the  vessel,  there  is  no  juridical  objection  to  a 
claim  of  title  being  enforced  in  the  same  way.  The  fact  that  it  is  not  so  enforced 
under  existing  practice  affords  no  test  of  the  powers  of  the  Legislature.  The 
contrary  view  would  indicate  that  you  really  believed  the  fiction  that  a  vessel  had 
an  independent  personality  as  a  fact  behind  the  law."     (1900)   175  Mass.,  71,  77. 

29  (6th  ed.,  1905)  sec.  165. 

30  To  say  that  all  rights,  or  claims,  must  avail  against  persons  is,  of  course, 
simply  another  way  of  asserting  that  all  duties  must  rest  upon  persons.  The 
latter  is  no  less  obvious  than  the  proposition  that  all  rights  must  reside  in  persons. 

Compare  Mr.  Justice  Markby,  in  his  Elements  of  Law  (6th  ed.,  1905),  sec.  163: 

' '  The  chief,  in  my  opinion  the  only,  use  of  a  division  of  law  into  the  law  of 
persons  and  the  law  of  things  is  as  a  convenient  arrangement  of  topics  in  a*  treatise 
or  a  code.  As  used  for  this  purpose  I  shall  speak  of  it  hereafter.  But  by  slightly 
changing  the  terms  in  which  this  classification  is  expressed,  Blackstone  has  intro- 
duced an  important  error,  which  it  is  desirable  to  notice  here.  He  speaks  not  of 
the  law  of  persons  and  of  the  law  of  things,  but  of  rights  of  persons  and  of  rights 
of  things.  Eights  of  persons  there  are  undoubtedly;  for  all  rights  are  such. 
There  may  be  also  rights  over  things,  and  rights  over  persons;  but  rights  of,  that 
is,  belonging  to,  things,  as  opposed  to  rights  of,  that  is,  belonging  to,  persons, 
there  cannot  be. ' ' 

Compare  also  Mr.  Justice  Henshaw  in  Western  Indemnitij  Co.  v.  PiUshury 
(1915),  170  Cal.,  686,  719: 

"Again  it  is  said  that  it  is  thought  expedient  that  the  loss  by  injuries  to  work- 
men should  be  borne  by  the  industries  and  not  by  the  men.  But  this  is  only  a 
euphemism  which  obscures  the  facts  and  darkens  reason.  It  is  like  other  happy 
catch-phrases  that  deceive  the  mind  by  pleasing  the  ear.  We  have  many  §uch. 
'Putting  the  rights  of  property  before  the  rights  of  men,'  is  one — as  though  prop- 
erty apart  from  those  of  its  human  owner,  ever  did  or  could  have  any  rights.  So 
that  the  rights  of  property  are  absolutely  the  rights  of  men. ' ' 

31  The  consideration  being  actually  paid  to  B,  the  validity  of  B  's  promise  to  A 
is,  of  course,  not  subject  to  question  merely  because  B  was  already  under  a  similar 
duty  to  X. 


AS  Al'PLlEI)  IN  JUDICIAL  KEASOXIXG  77 

against  15  concerning  Whiteacre  is  a  right  in  personam,  or  pau.ital 
right;  for  A  lias  no  similar  and  scpafate  rights  concerning  AVhitta«r»' 
availing  respectively  against  other  persons  in  general.  On  the  other 
hand,  A's  right  against  P>  concerning  Hlackacre  is  o})vi()Usly  a  riglit 
in  rem,  or  niultital  riglit:  for  it  is  but  one  of  a  very  large  nunilicr  of 
fundamentally  similar  (though  separate)  rights  which  A  has  respec- 
tively against  B,  C,  I).  E,  F,  and  a  great  many  other  persons.  It 
must  now  be  evident,  also,  that  A's  Blackacre  right  against  H  is, 
intrinsi(aUij  considered,  of  the  same  general  character  as  A's  White- 
acre  right  against  B.  The  Blackacre  right  differs,  so  to  say.  only 
extrinsic  ally,  that  is,  in  having  many  fundamentally  similar.  1  hough 
distinct,  rights  as  its  ''companions."  So,  in  general,  we  might  say 
that  a  right  in  personam  is  one  having  few,  if  any,  ''companions"; 
v.'hereas  a  right  in  rem  always  has  many  such  "companions." 

If,  then,  the  Whiteacre  right,  being  a  right  in  p(  rsonam,  is  recog- 
nized as  a  right  against  a  person,  must  not  the  Blackacre  right  also, 
being,  point  for  point,  intrinsically  of  the  same  general  nature,  be 
conceded  to  be  a  riglit  against  a  person?  If  not  that,  what  is  it  ?  How 
can  it  be  apprehended,  or  described,  or  delimited  at  all  ? 

If  it  be  said  that,  as  regards  Blackacre,  A  has  besides  his  rights,  or 
claims,  against  B,  C,  D,  E,  and  others,  various  legal  privileges  of  con- 
trolling and  using  the  land,  and  that  these  exist  "to,  over,  or 
against"  the  land,  one  answer  might  be  that  as  regards  Whiteacre 
also  A  has  similar  privileges  against  B,  C,  D,  E  and  all  others  except- 
ing X,  the  true  owner.  But  the  really  relevant  and  paramount  reply 
at  this  point  is  that  we  are  now  dealing  only  with  multital  rights,  or 
claims,  and  not  with  multital  privileges.  The  latter  will  recpiire  atten- 
tion in  a  later  part  of  the  discussion.'-  It  may,  however,  even  at  this 
point  be  incidentally  noticed  that  the  general  tendeney  to  "confuse" 
or  "blend"  legal  privileges  with  legal  rights,  or  claims,  has  doubtless 
contributed  greatly  to  the  hazy  conception  of  a  right  in  r<  ni  as  a  right 
to,  over,  or  against  a  thing. 

For  the  reasons  already  given  the  following  i)assages  from  legal 
treatises  and  judicial  opinions  seem  open  to  (piestion  in  one  or  more 
particulars : 

1874,  Mr.  Stephen  Martin  Leake,  Law  of  Properfg  in  Land: 

"Jurisprudence  distinguishes  Rights.  nsin<f  the  t(M-m  //(  fJn  sfrict 
legal  meaning,  into  the  two  classes  of  Kights  fo  Things  and  Rights 
against  P<  rsons,  familiarly  known  in  the  civil  law  by  the  terms  jnra  in 
rem  and  jnra  in  p<  rsonam. 

"Rights  to  things,  jura  in  rem,  have  for  their  subject  some  matfrial 


32  See  post,  i.p.  06-101. 


78  FUNDAMENTAL  LEGAL  CONCEPTIONS 

thing,  as  land  or  goods,  which  the  owner  may  use  or  dispose  of  in  any 
manner  he  pleases  within  the  limits  prescribed  by  the  terms  of  his 
right.  A  right  of  this  kind  imports  in  all  persons  generally  the  cor- 
relative negative  duty  of  abstaining  from  any  interference  with  the 
exercise  of  it  by  the  owner;  and  by  enforcing  this  duty  the  law  pro- 
■tecfs  and  establishes  the  right.  But  a  right  of  this  kind  does  not 
import  any  positive  duty  in  any  determinate  person,  or  require  any 
act  or  intervention  of  such  person  for  its  exercise  and  enjoyment. 

"Eights  against  persons,  jura  in  personam,  on  the  other  hand,  have 
for  their  subject  an  act  or  performance  of  some  certain  determinate 
person,  as  the  payment  of  money,  the  delivery  of  goods  and  the  like. 
A  right  of  this  kind  imports  the  correlative  positive  legal  duty  in  the 
determinate  person  to  act  in  the  manner  prescribed.  It  depends  for 
its  exercise  or  enjoyment  upon  the  performance  of  that  duty,  and  is 
secured  by  the  legal  remedies  provided  for  a  breach  of  perform- 
ance. ,  .   . 

"Rights  to  things,  jura  in  rem,  vary  and  are  distinguished  accord- 
ing to  the  things  or  material  subjects  in  the  use  or  disposal  of  which 
the  right  consists."'^ 

The  learned  author,  whose  book  is  well  known  to  law  students  and 
highly  valued  for  its  general  clearness  and  accuracy,  has  been  unfortu- 
nate in  treating  "in  rem"  as  if  it  meant  "to  a  thing";  and  it  would 
seem  that  he  was  influenced  to  do  this,  partly  at  least,  as  a  result  of 
confusing  legal  privileges  and  legal  rights.  More  than  that,  this  first 
error  has  led  to  an  additional  one :  that  of  conveying  the  impression 
that  all  rights  in  rem  (multital' rights),  in  order  to  be  such,  must  relate 
to  a  material  thing.  Such  a  limitation  would  exclude  not  only  many 
rights  in  rem,  or  multital  rights,  relating  to  persons,  but  also  those 
constituting  elements  of  patent  interests,  copyright  interests,  etc. 
Finally  the  learned  author  falls  into  the  error  of  asserting  that  all 
rights  in  personam  are  affirmative  in  character;  whereas  they  may 
occasionally  be  negative,  as  heretofore  seen. 

1916,  Professor  Joseph  Henry  Beale,  Treatise  on  Conflict  of  Laws: 

"The  nature  of  rights. — The  primary  purpose  of  law  being  the 
creation  of  rights,  and  the  chief  task  of  the  Conflict  of  Laws  to  deter- 
mine the  place  where  a  right  arose  and  the  law  that  created  it,  a  more 
careful  study  of  the  nature  of  rights  is,  of  course,  desirable  before  the 
examination  of  actual  cases  of  conflict  is  begun.  .   .   . 

"Since  we  are  fortunate  enough  to  have  different  words  for  these 
ideas  [law  and  rights]  it  is  all  the  more  necessary  that  we  should 
fully  understand  each  of  them. 

"A  right  may  be  defined  as  a  legally  recognized  interest  in,  to,  or 
against  a  person  or  a  thing.  "^^ 

"■i  Laiv  of  Property  in  Land  (1st  ed.,  1874),  pp.  1,  2. 

31  Beale,  Treatise  on  Conflict  of  Laws  (1916),  see.  139.  All  -will  agree  with 
Professor  Beale  that,  for  accurate  thinking  and  correct  results  in  the  conflict  of 
laws,  it  is  of  vital  importance  to  have  sound  and  consistent  conceptions  of  legal 


AS  APPLIED  IN  JUDICIAL  REASOXIXG  79 

1903,  Mr.  Herbert  Thorndyke  Tiffany,  Modern  Law  of  Etal  Prop- 
erty: 

"Powers  of  attorney,  by  wbicb  one  person  is  nominated  as  an  agent 
to  make  a  transfer  or  do  some  otlier  aet  in  the  name  and  stead  of  the 
principal,  are  sometimes  spoken  of  as  commondaw  powers.  Such  an 
authority',  however,  while  it  did  exist  as  common  law.  is  cntinly  differ- 
ent from  the  powers  here  considered   (i.e.,  powers  of  appointment), 

rights  and  other  jural  relations;  and  it  is  evident  that,  pursuant  to  this  idea,  much 
of  the  learned  author 's  reasoning  and  very  many  of  his  arguments  and  conclusions 
on  specific  i>roblenis  in  the  (onflict  of  laws  have,  very  naturally,  lieen  directly  based 
on  his  "preliminary  survey"  of  "rights"  and  on  his  supposed  distinction  between 
what  he  calls  "static  rights"  and  what  he  calls  "dynamic  rights." 

Yet  it  may  be  doubted  whether  Professor  Beale  has  made  clear  and  consistent 
his  conception  of  a  so-called  "static  right"  as  "a  legally  recognized  interest  in,  to, 
or  against  a  person  or  a  thing";  and  thus  one  is  forced  the  more  to  question  the 
validity  of  many  of  his  arguments  and  conclusions  in  the  closely  related  fields  of 
jurisprudence  and  conflict  of  laws. 

At  one  time  the  "static  right"  seems  to  be  a  purely  factual  "interest" 
existing  independently  of  Jaw;  at  another  time  a  relation  "created  by  laiv."  The 
former  idea  is  suggested  when  the  learned  author  refers  to  Gareis's  definition  of 
"interests."  This  appears  very  clearly  not  only  from  the  intrinsic  meaning  of 
Gareis's  language  as  quoted  by  Professor  Beale,  but  also  from  certain  introductory 
words  which  are  to  be  found  in  Gareis's  original  work:  "Interests,  considered  as 
facts,  arise  directly  from  egoism,  and  are  nothing  other  than  subjectively  perceived 
relations,"  etc.  See  Gareis^  Systematic  Survey  (Kocourek's  translation),  p.  31. 
Indeed,  Professor  Beale  himself,  in  the  very  definition  quoted  in  the  text  of  the 
present  article,  defines  "a  right"  as  an  "interest,"  not  as  some  legal  relation 
protecting  the  interest:  there  is  a  very  obvious  difference — and  one  vitally  impor- 
tant for  the  solution  of  problems  in  the  conflict  of  laws — between  a  mere  factual 
interest  and  its  legal  recognition   (legal  claims,  privileges,  etc.). 

In  sec.  141,  however,  we  find  the  following: 

"A  static  right,  or  as  it  is  commonly  called  a  vested  interest,  is  a  legally  pro- 
tected interest  in  a  person  or  thing.  Such  an  interest  is  one  which  continues 
indefinitely,  and  protection  of  it  therefore  requires  a  right  which,  like  the  interest 
it  protects,  has  the  character  of  permanence.  Accordingly  a  static  right  remains  in 
existence  until  either  the  subject  of  the  interest  ceases  to  exist  or  the  law  itself  by 
a  special  act  puts  an  end  to  the  right." 

In  this  passage  we  are  told  first,  that  a  "static  right''  is  an  interest:  second, 
that  the  "right"  is  something  other  than  "the  interest  it  protects";  /?iir<7.  that 
"a  static  right  remains  in  existence  until  .  .  .  the  law  itself  .  .  .  puts  an  end  to 
the  right. ' ' 

A  similar  sudden  and  difficult  shift  seems  to  occur  in  see.  142.     Thus: 

"A  static  right,  as  has  been  seen,  is  the  interest  of  a  person  in  a  thing  or  in  a 
person;  the  right  is  created  by  law,  and  once  created  it  is  permanent,  that  is.  it 
persists  until  the  proper  law  puts  an  end  to  it.  The  law  that  creates  it,  as  will  be 
seen,  also  provides  for  its  preservation,  by  creating  a  hedge  of  protecting  rights 
about  it;  rights  of  the  owner  or  possessor  to  have  it  free  from  interference  or 
destruction.  .  .  .  It  is  to  be  regarded  as  a  legal  entit;/  quite  apart  from  the  particu- 
lar protection  with  which  it  may  be  endued  by  law.'' 


80  FUNDAMENTAL  LEGAL  CONCEPTIONS 

since  it  is  merely  an  agency  in  the  person  to  whom  the  power  is  given, 
authorizing  him  to  execute  an  instrument  of  conveyance  or  to  do  some 
other  act  in  the  place  and  stead  of  his  principal,  the  title  passing,  not 
by  the  power  of  attorney,  but  by  the  conveyance  subsequently  made, 
which  is  regarded  as  made  by  the  principal.  A  power  of  attorney 
creates  merely  a  contractual  relation, — rights  in  personam, — as  does 
any  other  contract  of  agency ;  while  a  power,  such  as  we  here  treat  of, 
involving  dominion  over  land  to  a  greater  or  less  extent,  creates  in  the 
person  to  whom  the  power  is  given  rights  in  rem  of  a  proprietary 
character. '  '^^ 

The  exact  meaning  of  the  learned  author  is  not  evident ;  but  it  seems 
clear  that  the  power  of  an  agent  to  convey  "Whiteacre  is  not  intrin- 
sically different,  so  long  as  it  endures,  from  a  power  to  convey  White- 
acre  in  exercise  of  a  so-called  power  of  appointment.  It  is  true  that 
the  agent  is  subject  to  a  liability  of  having  his  power  "revoked"  or 
divested  by  the  principal,  whereas  the  power  of  appointment  is  subject 
to  no  similar  liability  at  the  hands  of  anyone.  But  this  difference, 
conceding  its  great  importance  is,  of  course,  not  accurately  expressed 
by  asserting  that  the  power  of  attorney  creates  rights  in  personam, 
"merely  a  contractual  relation,"  and  the  power  of  appointment 
"creates  in  the  person  to  whom  the  power  is  given  rights  in  rem  of  a 
proprietary  character."  In  truth  the  creation  of  a  power  of  agency 
does  not  necessarily  involve  any  contract  rights  against  the  principal 
or  anyone  else.'"  The  fact  seems  to  be  that  the  greater  "staying" 
quality  of  the  power  of  appointment  (as  compared  with  the  power 
of  agency)  has  suggested  to  the  author  greater  "adhesiveness"  or 
"thingness,"  and  hence  caused  the  inappropriate  terms  now  under 
review.  Further  critical  consideration  of  the  last-quoted  passage  will 
'he  desirable  in  connection  with  the  subject  of  immunities  in  personam 
and  immunities  in  rem. 

1828,  Sir  Thomas  Plumer,  M.R.,  in  Dearie  v.  Hall: 

"They  say,  that  they  were  not  bound  to  give  notice  to  the  trustees; 
for  that  notice  does  not  form  part  of  the  necessary  conveyance  of  an 
equitable  interest.  I  admit,  that,  if  you  mean  to  rely  on  contract  with 
the  individual,  you  do  not  need  to  give  notice ;  from  the  moment  of 
the  contract,  he,  with  whom  you  are  dealing,  is  personally  bound. 
But  if  you  mean  to  go  further,  and  to  make  your  right  attach  upon  the 
thing  which  is  the  subject  of  the  contract,  it  is  necessary  to  give 
notice ;  and,  unless  notice  is  given,  you  do  not  do  that  which  is  essen- 
tial in  all  cases  of  transfer  of  personal  property.  .  .  .  Notice,  then,  is 
necessary  to  perfect  the  title. — to  give  a  complete  right  in  rem.  and 
not  merely  a  right  as  against  him  who  conveys  his  interest. '  '^' 

35  Modern  Law  of  Beat  Property  (1903),  sec.  273. 
SGSee  Huffcut,  Agency  (2d  ed.,  1901),  see.  10. 
37  (1828)  3  Euss.,  1,  22,  24. 


AS  Ai'i'Lir^r*  IN  .irDirrAT.  keasoxixg  si 

This  passage  from  Dnnif  v.  Hall  will  iv(|uii-i'  turtlnT  tivatnu'iit  in 
connection  \v\\\\  tlic  suhjcet  of  immunities  in  pcrsnuitm  ami  immiuiities 
in  rem. 
•  1857,  ^Ir.  Justice  Cutting,  in  lidlimjton  v.  Fryi  : 

''But  a  sul)-eontractor  has  no  claim  against  the  owner  of  the 
propo-hj — liis  claim  is  only  against  tlie  propfrtg  (in  rem),  and  tli<' 
person  and  property  of  his  employer  {in  personam).''''* 

The  preceding  quotations  from  legal  treatises  and  judicial  opinions 
have  been  presented,  as  is  evident,  for  the  purpose  of  exemplifying 
the  less  careful  and  exact  use  of  terms  tliat  we  sometimes  find,  and 
for  the  further  purpose  of  indicating  the  confusion  of  thought  that  is 
likely  to  result  in  such  cases.  Over  against  these  will  now  l>e  con- 
sidered various  passages  from  legal  treatises  and  judicial  opinions 
exemplifying  more  precise  modes  of  thought  and  expression.  It  is 
desirable  to  begin  with  Austin;  for  his  work  on  Jurisprinh  n<  e  was 
the  first  to  give  prominence  to  the  terms  right  //(  r<  m  and  right  in  pi  r- 
sonam  among  English-speaking  lawyers  and  authors,  and  his  language 
has  become  classical  in  its  importance : 

1832,  Professor  John  Austin.  Lectures  on  Jurisprudence  or  The 
Philosophy  of  Positive  Law: 

"The  distinction  between  Rights  which  T  shall  presently  endeavour 
to  explain,  is  that  all-])erva(ling  and  important  distinction  whieh  has 
been  assumed  by  the  Roman  Institutional  AVriters  as  the  main  ground- 
work of  their  arrangement :  namely,  the  distinction  between  rigiits 
in  rem  and  rights  in  personam:  or  rights  which  avail  against  persons 
generally  or  universally,  and  rights  which  avail  exclusively  against 
certain  or  determinate  persons.'' ' 

3S  (1857)  43  Me.,  578,  587. 

39  The  pair  of  terms,  "jus  i»  per.'ionam"  and  "./».?  in  rem"  as  contrasted  with 
the  pair  of  terms,  "actio  in  j^cr.iO)iam"  and  "actio  in  rem,"  was  not  in  general 
use  among  the  Eoman  jurists.  Compare  Clark,  Historji  of  Roman  Law:  Juruspni- 
denee,  Vol.  II,  p.  711  :  "  Ju.s  in  rem  and  Jus  in  re  in  Roman  Law.  The  former  of 
these  expressions  is  very  little  used  by  the  Roman  Jurists,  hut.  in  the  few  pa.<*sage3 
in  whieh  is  occurs,  res  clearly  means  the  thing  itself  as  distinguished,  e.g.,  from"  ita 
value.  (See  Ulpian,  Dig.,  .32,  20.  Xulhim  ijuidrm  jus  iu  ip.'iam  retn  habere,  sed 
actionem  de  pretio.     Cf.  Goudsmit,  247  u.)  " 

It  is  clear,  therefore,  that  the  "all-pervading  and  inijiortant  "  Roman  law  dis- 
tinction to  which  Austin  refers  was  that  represented  by  ohlifwtio  and  dominium. 
Compare  Austin,  Jurisprudence  (5th  ed.,  1SS5),  Vol.  T.  p.  .38.3:  "  By  ju.t  in  rem  and 
jus  in  personatn,  the  authors  of  those  terms  intended  to  indicate  this  broad  and 
simple  distinction;  which  the  Roman  lawyers  also  marked  by  the  words  dominium 
and  oblifiatio — terms  the  distinction  between  which  was  the  groundwork  of  all  their 
attempts  to  arrange  rights  and  duties  in  an  a<'curate  or  scientific  manner."  Also 
Austin,  Jurisprudence,  Vol.  II,  p.  773:  "The  first  great  distinction  among  primary 
rights  has  been  very  fully  explained  in  a  preceding  part  of  this  Course.     I  allude  to 


82  FUNDAMENTAL  LEGAL  CONCEPTIONS 

"The  terms  ^jus  in  rem'  and  'jus  in  personam'  were  devised  by 
the  Civilians  of  the  Middle  Ages,  or  arose  in  times  still  more 
recent.  .   .   . 

''The  phrase  in  rem  denotes  the  compass,  and  not  the  subject  of  the 
right.  It  denotes  that  the  right  in  question  avails  against  persons 
generally ;  and  not  that  the  right  in  question  is  a  right  over  a  thing. 
For,  as  I  shall  show  hereafter,  many  of  the  rights,  which  are  jura  or 
rights  in  rem,  are  either  rights  over,  or  to,  persons,  or  have  no  subject 
(person  or  thing). 

"The  phrase  in  personam  is  an  elliptical  or  abridged  expression  for 
'in  personam  certam  sive  determinatam. '  Like  the  phrase  in  rem,  it 
denotes  the  compass  of  the  right.  It  denotes  that  the  right  avails 
exclusively  against  a  determinate  person,  or  against  determinate 
persons.  "*" 

Additional  explanations  of  ideas  and  terms  and  further  instructive 
examples  of  usage  are  to  be  found  in  the  following  utterances  of  able 
judges : 

1871,  Mr.  Justice  Markby,  Elements  of  Law: 

"The  term  'right  in  rem'  is  a  very  peculiar  one;  translated  literally 
it  would  mean  nothing.  The  use  of  it  in  conjunction  with  the  term 
'in  personam'  as  the  basis  of  a  classification  of  actions  in  the  Roman 
law  has  been  explained  above,  and  its  meaning  will  be  further  illus- 
trated by  two  passages  in  the  Digest  of  Justinian.  In  Book  iv.  tit.  2. 
sec.  9,  the  rule  of  law  is  referred  to — that  what  is  done  under  the 
influence  of  fear  should  not  be  binding:  and  commenting  on  this  it 
is  remarked,  that  the  lawgiver  speaks  here  generally  and  'in  rem,' 
and  does  not  specify  any  particular  kind  of  persons  who  cause  the 
fear;  and  that  therefore  the  rule  of  law  applies,  whoever  the  person 
may  be.  Again,  in  Book  xliv.  tit.  4.  sec.  2,  it  is  laid  down  that,  in  what 
we  should  call  a  plea  of  fraud,  it  must  be  specially  stated  whose  fraud 
is  complained  of,  'and  not  in  rem.'  On  the  other  hand,  it  is  pointed 
out  that,  if  it  is  shown  whose  fraud  is  complained  of,  it  is  sufficient; 
and  it  need  not  be  said  whom  the  fraud  was  intended  to  injure ;  for 
(says  the  author  of  the  Digest)  the  allegation  that  the  transaction 
is  void,  by  reason  of  the  fraud  of  the  person  named,  is  made  'in  rem.' 
In  all  these  three  cases  'in  rem'  is  used  as  an  adverb,  and  I  think  we 
should  express  as  nearly  as  possible  its  exact  equivalent,  if  we  sub- 
stituted for  it  the  English  word  'generally.'  In  the  phrase  'right  in 
rem'  it  is  used  as  an  adjective,  and  the  equivalent  English  expression 
would  be  a  '  general  right ' ;  but  a  more  explicit  phrase  is  a  '  right 
availing  against  the  world  at  large':  and  if  this,  which  is  the  true 
meaning  of  the  phrase  'right  in  rem,'  be  carefully  remembered, 
no  mistake  need  occur.  "*^ 

the  distinction  between  dominia  and  obligationes,  as  they  were  called  by  the  classi- 
cal jurists;  between  jura  in  rem  and  jura  in  personam,  as  they  have  been  styled  by 
modern  Civilians. ' ' 

io  Jurisprudence  (5th  ed.,  1885),  Vol.  I,  pp.  369,  370. 

ii  Elements  of  Laic  (6th  ed.,  1905),  sec.  165. 


AS  API'LIKI)   IX  .U'DICIAL  REA^oNTXG  g3 

1883,  Mr.  Justice  .Mulk.'y.  in  U'.,  St.  L.  d-  P.  Rij.  Co.  v.  Shacklct: 

"One  of  the  primary  rifjhi.'i  of  the  citizen,  sanctioned  by  the  positive 
law  of  the  State,  is  security  to  life  and  limb,  and  indemnity  against 
personal  injuries  occasioned  by  the  negligence,  fraud  or  violence  of 
others.  This  is  a  right  which  avails  aijainst  all  />o-so«.s-  whomsoever, 
and  is  distinguished  from  a  right  which  avails  against  a  particular 
individual  or  a  determinate  class  of  persons.  The  former  is  called  a 
right  in  rem,  the  latter  a  right  in  personam.  The  foniK-r  class  of 
rights  exists  independently  of  contract;  the  latter  frciiucutly  arises 
out  of  contract.  .    .   . 

"So  in  the  present  case,  appellee's  intestate  had  a  right  in  nm,  or 
a  general  right,  which  entitled  him,  if  free  from  fault  himself,  to  be 
protected  and  indemnified  against  injuries  resulting  from  the  negli- 
gence of  all  persons  whomsoever,  including  the  appellant.  .    .    .  "*- 

1886,  Mr.  Justice  Holmes,  in  Hogan  v.  Barry: 

"There  is  no  doubt  that  an  easement  may  be  created  by  words 
sounding  in  covenant.  Bronson  v.  Coffin,  108  Mass.,  175,  180.  If  the 
seeming  covenant  is  for  a  present  enjoyment  of  a  nature  recognized  by 
the  law  as  capable  of  being  conveyed  and  made  an  easement, — capable, 
that  is  to  say,  of  being  treated  as  a  jus  in  rem,  and  as  not  merely  the 
subject  of  a  personal  undertaking, — and  if  the  deed  discloses  that  the 
covenant  is  for  the  benefit  of  adjoining  land  conveyed  at  the  same 
time,  the  covenant  mnst  be  construed  as  a  grant,  and,  as  is  said  in 
Plowden,  308,  'the  phrase  of  speech  amounts  to  the  effect  to  vest  a 
present  property  in  you.'  An  easement  will  be  created  and  attaclied 
to  the  land  conveyed,  and  will  pass  ^nth  it  to  assigns,  whether  men- 
tioned in  the  grant  or  not.  "^^ 

1903..  Mr.  Justice  Holmes,  in  International  Postal  Supply  Co.  v. 
Bruce: 

"As  the  United  States  could  not  be  made  a  party  the  suit  failed. 
In  the  case  at  bar  the  United  States  is  not  the  owner  of  the  machines, 
it  is  true,  but  it  is  a  lessee  in  possession,  for  a  term  which  has  not 
expired.  It  has  a  property,  a  right  in  rem,  in  the  machines,  which, 
though  less  extensive  than  absolute  ownership,  has  the  same  incident 
of  a  right  to  use  thera  while  it  lasts.  "^^ 

1904,  Mr.  Justice  Holmes,  in  Baltimore  Shipbuilding  Co.  v,  Balti- 
more : 

"In  the  next  place,  as  to  the  interest  of  the  United  States  in  the 
land.  This  is  a  mere  condition  subsequent.  Tht're  is  no  easement  or 
present  right  in  rem.  The  obligation  to  keep  up  the  dock  atul  to  allow 
the  United  States  to  use  it  carries  active  duties  and  is  purely  per- 
sonal.  .  .  .  The  United  States  has  no  present  right  to  the  land,  but 
merely  a  personal  claim  against  the  corporation,  reinforced  by  a 
condition."*'" 


42  (1883)  105  111.,  364,  379.  «  (1903)  194  U.  S.,  601,  606. 

"  (1886)  143  Mass.,  538.  ■'s  (1904)  195  U.  8.,  375,  .382. 


84  FUNDAMENTAL  LEGAL  CONCEPTIONS 

1905,  Mr.  Justice  Holmes,  in  Muhlker  v.  Harlem  R.  R.  Co.: 

"What  the  plaintiff  claims  is  really  property,  a  right  in  rem.  It 
is  called  contraet  merely  to  bring  it  within  the  contract  clause  of  the 
Constitution.  "*« 

1913,  Viscount  Haldane,  Lord  Chancellor,  in  Atteriborough  v. 
Solomon: 

''But  the  question  which  goes  to  the  root  of  this  case  is  one  which 
renders  such  a  proposition  wholly  beside  the  point.  If  I  am  right, 
there  is  no  question  here  of  an  executor  acting  in  the  execution  of  his 
powers,  so  far  as  this  residue  is  concerned.  The  executors  had  long 
ago  lost  their  vested  right  of  property  as  executors  and  become,  so 
far  as  the  title  to  it  was  concerned,  trustees  under  the  will.  Executors 
they  remained,  but  they  were  executors  who  had  become  divested,  by 
their  assent  to  the  dispositions  of  the  will,  of  the  property  which  was 
theirs  virtute  officii;  and  their  right  in  rem,  their  title  of  property,  had 
been  transformed  into  a  right  in  personam, — a  right  to  get  the  prop- 
erty back  by  proper  proceedings  against  those  in  whom  the  property 
should  be  vested  if  it  turned  out  that  they  required  it  for  payment  of 
debts  for  which  they  had  made  no  provision."*^ 

1914,  Viscount  Haldane,  Lord  Chancellor,  in  Sinclair  v.  Brougham: 

The  difficulty  of  establishing  a  title  in  rem  in  this  case  arises  from 
the  apparent  difficulty  of  following  money.  In  most  cases  money 
cannot  be  followed.  When  sovereigns  or  bank  notes  are  paid  over  as 
currency,  so  far  as  the  payer  is  concerned,  they  cease  ipso  facto  to  be 
the  subjects  of  specific  title  as  chattels.  If  a  sovereign  or  bank  note 
be  offered  in  payment  it  is,  under  ordinary  circumstances,  no  part  of 
the  duty  of  the  person  receiving  it  to  inquire  into  title.  The  reason  of 
this  is  that  chattels  of  such  a  kind  form  part  of  what  the  law  recog- 
nizes as  currency,  and  treats  as  passing  from  hand  to  hand  in  point, 
not  merely  of  possession,  but  of  property.  It  would  cause  great  incon- 
venience to  commerce  if  in  this  class  of  chattel  an  exception  were  not 
made  to  the  general  requirement  of  the  law  as  to  title.  .   .   . 

' '  That  seems  to  be,  so  far  as  the  doctrine  of  the  common  law  is  con- 
cerned, the  limit  to  w^hich  the  exception  to  the  rule  about  currency 
was  carried;  whether  the  case  be  that  of  a  thief  or  of  a  fraudulent 
broker,  or  of  money  paid  under  mistake  of  fact,  you  can,  even  at  law, 
follow,  but  only  so  long  as  the  relation  of  debtor  and  creditor  has  not 
superseded  the  right  in  rem."^^ 

1914,  Lord  Sumner,  in  Sinclair  v.  Brougham: 

"Analogous  cases  have  been  decided  with  regard  to  chattels.  They 
differ,  no  doubt,  because  of  the  fact  that  the  property  in  the  chattels 
remained  unchanged,  though  identification  and  even  identity  of  the 
subject-matter  of  the  property  failed,  whereas  here,  except  as  to  cur- 
rency, and  even  there  only  in  a  restricted  sense,  the  term  property,  as 
we  use  that  term  of  chattels,  does  not  apply,  and,  at  least  as  far  as 

40  (1905)  197  U.  S.,  544,  575.       48  [1914]  A.  C,  398,  418,  419. 
47  [1913]  A.  C,  76,  85. 


AS  APPLIED  IX  JUDICIAL  KEASOXING  85 

intention  could  do  it.  both  depositors  and  sliart'lioldcrs  had  given  up 
the  right  to  call  tlie  money  or  its  proceeds  their  own,  and  had  taken 
instead  personal  claims  on  the  society."*® 

1916,  Mr.  Justice  Brandeis,  in  Knjgcr  v.  ^yilson: 

"If  the  plaintiff  in  error  had  not  submitted  himself  to  the  juris- 
diction of  the  court,  the  decree  could  have  determined  only  the  title 
to  the  land,  and  would  have  left  him  free  to  assert  any  personal  rights 
he  may  have  had  under  the  contract."''" 

(b)  A  multital  rigid  or  claim  {right  in  rtm),  is  not  always  one 
relating  to  a  thing,  i.e.,  a  tangible  object:  If  the  preceding  discussion 
has  served  its  various  purposes,  it  must  now  be  rea.sonably  clear  that 
the  attempt  to  conceive  of  a  right  in  rem  as  a  right  against  a  thing 
should  be  abandoned  as  intrinsically  unsound,  as  thoroughly  discredited 
according  to  good  usage,  and,  finally,  as  all  too  likely  to  confuse  and 
mislead.  It  is  desirable,  next,  to  emphasize,  in  more  specific  and  direct 
form,  another  important  point  which  has  already  been  incidentally 
noticed :  that  a  right  in  rem  is  not  necessarily  one  relating  to,  or  con- 
cerning, a  thing,  i.e.,  a  tangible  object.  Such  an  assumption,  although 
made  by  Leake  and  by  many  others  who  have  given  little  or  no  atten- 
tion to  fundamental  legal  conceptions,  is  clearly  erroneous.  The  term 
right  in  rem  (multital  right)  is  so  generic  in  its  denotation  as  to 
include:  1.  Multital  rights,  or  claims,  relating  to  a  definite  tangible 
object:  e.g.,  a  landowner's  right  that  any  ordinary  person  shall  not 
enter  on  his  land,  or  a  chattel  owner's  right  that  any  ordinary  person 
shall  not  physically  harm  the  object  involved, — be  it  horse,  watch, 
book,  etc.  2.  Multital  rights  (or  claims)  relating  neither  to  definite 
tangible  object  nor  to  (tangible)  person,  e.g.,  a  patentee's  right,  or 
claim,  that  any  ordinary  person  shall  not  manufacture  articles  covered 
by  the  patent;  3.  Multital  rights,  or  claims,  relating  to  the  holder's 
own  person,  e.g.,  his  right  that  any  ordinary  person  shall  not  strike 
him,  or  that  any  ordinary  person  shall  not  restrain  his  physical  liberty, 
i.e.,  "falsely  imprison"  him;  4.  ]\Iultital  rights  residing  in  a  given 
person  and  relating  to  another  person,  e.g..  the  right  of  a  father  that 
his  daughter  shall  not  be  seduced,  or  the  right  of  a  husband  that  harm 
shall  not  be  inflicted  on  his  wife  so  as  to  deprive  him  of  her  company 
and  assistance;  5.  ]\Iultital  rights,  or  claims,  not  relating  directly  to 
either  a  (tangible)  person  or  a  tangible  object,  e.g.,  a  per-son's  right 
that  another  shall  not  publish  a  libel  of  him.  or  a  person's  right  that 
another  shall  not  publish  his  picture.-^the  so-called  "right  of  privacy" 
existing  in  some  states,  but  not  in  all. 


•in  [3914]  A.  C,  308,  4.58. 

to  (1916)  242  U.  8.,  ]7],  ]77;  .{7  Sup.  Ct.  Rep.,  34,  35. 


86  FUNDAMENTAL  LEGAL  CONCEPTIONS 

It  is  thus  seen  that  some  rights  in  rem,  or  multital  rights,  relate 
fairly  directly  to  physical  objects;  some  fairly  directly  to  persons; 
and  some  fairly  directly  neither  to  tangible  objects  nor  to  persons. 

It  is,  however,  important  to  observe  that  there  is  a  more  specific 
Latin  term,  jus  in  re,  which  has  been  frequently  used  by  able  judges 
to  indicate  jural  relations  in  i'em  (i.e.,  multital  rights,  privileges, 
powers,  and  immunities)  directly  concerning  a  tangible  object,  such 
as  a  piece  of  land,  a  vessel,  etc.  This  form  of  expression  appears  to 
have  been  used  by  the  classical  Roman  jurists  almost  exclusively  in 
the  more  specific  combination,  jus  in  re  aliena  (easements,  profits, 
etc.),  as  contrasted  with  jus  in  re  propria;  but  the  more  generic  jus  in 
re  was  freely  employed  by  the  modern  civilians, — especially  in  oppo- 
sition to  a  particular  kind  of  jus  in  personam  called  jus  ad  rem.^^ 
The  following  explanations  and  examples  of  modern  usage  by  able 
judges  are  worthy  of  careful  and  critical  consideration : 

1871,  Mr.  Justice  Markby,  Elements  of  Laiv: 

"  It  is  necessary  to  distinguish  carefully  between  a  right  in  rem  and 
a  (so-called)  real  right.  A  real  right  is  a  right  over  a  specific  thing 
(a  jus  in  re,  as  will  be  explained  hereafter).  Thus  a  right  of  owner- 
ship is  a  real  right;  it  is  also  a  right  in  rem.  But  a  right  to  personal 
safety  is  not  a  real  right,  though  it  is  a  right  in  rem."^^ 

1914,  Lord  Dunedin,  in  Sinclair  v.  Brougham: 

"The  case  of  a  chattel  is  easy:  A  shopkeeper  delivers  an  article  at 
the  house  of  B  in  mistake  for  the  house  of  A.  An  action  would  lie 
against  B  for  restitution.  Such  an  action  could  easily  be  founded  on 
the  right  of  property.  To  use  the  Roman  phraseology,  there  would  be 
a  jus  in  re.  And  where  there  was  a  jus  in  re  there  would  not  be,  I 
take  it,  any  difficulty  in  finding  a  form  of  common  law  action  to  fit 
the  situation.  But  the  moment  you  come  to  deal  with  what  in  Roman 
phraseology  is  called  a  fungible,  and  especially  when  you  deal  with 
money,  then  the  jus  in  re  may  disappear,  and  with  it  the  appropriate- 
ness of  such  common  law  action.  The  familiar  case  is  the  paying  of 
money  by  A  to  B  under  the  mistaken  impression  in  fact  that  a  debt 
was  due,  when  in  truth  there  was  no  debt  due.  It  was  to  fit  cases  of 
this  sort  that  the  common  law  evolved  the  action  for  money  had  and 
received.  "^^ 

51  That  is,  if  A  has  a  right  in  personam  against  B  that  the  latter  shall  "trans- 
fer" some  "legal  interest,"  e.g.,  title  of  Blackacre,  to  A,  A  is  said  to  have  only 
a  jus  ad  rem;  whereas  after  conveyance  made  by  B,  A  would  have  jus  in  re. 

For  very  interesting  instances  of  the  nse  of  the  terms  jus  in  re  and  jus  ad  rem 
in  connection  with  attempts  to  explain  the  nature  of  tises  and  trusts,  see  Bacon, 
Uses  (circa  1602),  Eowe's  ed.,  pp.  5-6;  and  Co.  Lit.  (1628),  p.  272  b. 

Both  of  these  passages  are  quoted  in  (1913)  23  Yale  Law  Journal,  16,  notes  1 
and  2,  supra,  p.  23. 

52  Elements  of  Law  (6th  ed.,  1905),  99,  note. 

53  []9]4]  A.  C,  398,  431. 


A8  APPLIED  IX  .ICDICIAL  REASONING  t? 

1914,  Lord  Kinnear.  in  Bank  of  Scotland  v.  MacUod: 

''But  to  extend  Lord  Wcstluii-N's  ])lirase  so  as  to  make  it  c-ovt-r 
personal  obliijations  wliieli  do  not  altect  the  vtal  rifjht  of  the  oldi^or 
seems  to  me  altogetlier  extravagant.  It  was  maintained  in  arguiiieiit 
that  every  obligation  with  reference  to  any  property  or  fund  whieli 
involves  a  liability  to  account  fell  within  the  principle.  If  that  were 
so  every  imperfect  security,  however  invalid  as  a  rud  right,  would  be 
effectual  as  a  trust. ' '-'* 

1855,  Mr.  Justice  B.  R.  Curtis,  in  The  Young  Michanic: 

"But  I  will  first  inquire  what  right  or  interest  is  conferred  by  the 
statute,  provided  it  intended  to  create  such  a  lien  as  exists  by  the 
general  admiralty  laAv  upon  foreign  vessels. 

"Though  the  nature  of  admiralty  liens  has  doubtless  been  long 
understood,  it  does  not  seem  to  have  been  descril>ed  with  fulness  and 
precision,  in  p]ngland  or  this  country.  That  it  ditfers  from  what  is 
called  by  the  same  name  in  the  connnon  law,  is  clear;  for  it  exists 
independent  of  possession.  TJk  Bold  Biudcugh,  22  Eng.  L.  &  E(i.  62; 
The  Nestor,  1  Sumn.  73.  That  it  is  not  identical  with  e(|uitable  liens, 
is  equally  clear;  for  the  latter  arise  out  of  constructive  trusts,  and  are 
neither  a  jus  ad  rem,  or  a  jus  in  re;  but  simply  a  duty,  binding  on  the 
conscience  of  the  owner  of  the  thing,  and  which  a  Court  of  E<|uity 
will  compel  him  specifically  to  perform.  2  Story's  Eej.  Jurisp.  §  1217  ; 
Ex  parte  Foster,  2  Storv,  R.  145;  Clarke  v.  Southwick,  1  Curtis, 
299.  ... 

*'In  my  opinion  the  delinition  given  liy  Potliier  of  an  hypotlnH-ation 
is  an  accurate  description  of  a  maritime  lien  under  our  law.  "The 
right  which  a  creditor  has  in  a  thing  of  another,  which  right  consists 
in  the  power  to  cause  that  thing  to  be  sold,  in  order  to  have  the  debt 
paid  out  of  the  price.  This  is  a  right  in  the  thing,  a  jus  in  re.'  Traitc 
de  VHypothequc,  art.  prelim.  See  also,  Sanders's  Justinian,  page 
227.  .   .   . 

"Whether  he  can  make  the  seizure  himself,  only  to  lie  followed  by 
a  judicial  sale,  or  must  resort  to  a  court  for  both,  may  be  important 
as  to  remedy,  but  does  not  affect  bis  ultimate  and  essential  right.  .   .   . 

"Though  tacitly  created  by  the  law,  and  to  be  exeeuted  only  liy  the 
aid  of  a  court  of  justice,  and  resulting  in  a  juilicial  sale,  it  is  as  really 
a  property  in  the  thing  as  the  right  of  a  pledgee  or  the  lien  of  a  bailee 
for  work.  The  distinction  between  a  jus  in  re  and  a  jus  ad  n  )n  was 
familiar  to  lawyers  of  the  Middle  Ages,  and  is  said  then  to  have  first 
come  into  practical  use,  as  the  basis  of  the  ilivision  of  rights  into  real 
and  personal.  Sanders's  Intro,  to  Just.,  p.  49.  A  jus  in  re  is  a  right, 
or  property  in  a  thing,  valid  as  against  all  mankind.  A  jus  ad  r<  ni  is 
a  valid  claim  on  one  or  more  persons  to  do  something,  by  force  of 
which  a  jus  in  re  Avill  be  acquired.  Pothier,  Traid'  du  Droit  de 
Domaine,  ch.  Pretences;  Hugo,  Tlis.  <lu  Droit  Ix'om.,  vol.  1,  p.  IIS.  .   .   . 

"My  opinion  is,  that  the  lien  conferred  by  the  local  law  was  an 
existing  incumbrance  on  the  ve.ssel,  not  divested  or  extinguished  hy 


54  [1914]  A.  C,  311,  324. 


88  FUNDAMENTAL  LEGAL  CONCEPTIONS 

the  death  or  insolvency  of  the  owner;   and  that,  consequently,  the 
decree  of  the  District  Court  must  be  affirmed."^'' 

1900,  Mr.  Chief  Justice  Fuller,  in  The  Carlos  F.  Roses:     , 

' '  The  right  of  capture  acts  on  the  proprietary  interest  of  the  thing 
captured  at  the  time  of  the  capture  and  is  not  affected  by  the  secret 
liens  or  private  engagements  of  the  parties.  Hence  the  prize  courts 
have  rejected  in  its  favor  the  lien  of  bottomry  bonds,  of  mortgages,  for 
supplies,  and  of  bills  of  lading.  The  assignment  of  bills  of  lading 
transfers  the  jus  ad  rem,  but  not  necessarily  the  jus  in  rem.  The  jus 
in  re  or  in  rem  implies  the  absolute  dominion, — the  ownership  inde- 
pendently of  any  particular  relation  wdth  another  person.  The  jus 
ad  rem  has  for  its  foundation  an  obligation  incurred  by  another. 
Sand.  Inst.  Just.  Introd.,  xlviii ;  2  Marcade,  Expl.  du  Code  Napoleon, 
350;  2  Bouvier  (Rawle's  Revision),  73;  The  Young  Mechanic,  2 
Curtis,  404. 

"Claimants  did  not  obtain  the  jus  in  rem,  and,  according  to  the 
great  weight  of  authority,  the  right  of  capture  was  superior. '  '^^ 

1870,  Mr.  Justice  Foster,  in  Jacobs  v.  Knapp: 

"That  statute  provides  that  'any  person  who  labors  at  cutting, 
hauling,  or  drawing  wood,  bark,  logs,  or  lumber,  shall  have  a  lien 
thereon  for  his  personal  services,  which  lien  shall  take  precedence  of 
all  other  claims  except  liens  on  account  of  public  taxes,  to  continue 
sixty  days  after  the  services  are  performed,  and  may  be  secured  by 
attachment. ' 

' '  At  the  common  law  the  lien  of  a  mechanic,  manufacturer,  or  other 
laborer  'is  neither  a  jus  ad  rem  nor  a  jus  in  re:  that  is  to  say,  it  is  not 
a  right  of  property  in  the  thing  itself,  or  a  right  of  action  to  the  thing 
itself;  but  it  is  a  security,  derived  from  a  'general  principle  of  the 
common  law,  which  gives  to  a  man  who  has  the  lawful  possession  of 
a  thing  and  has  expended  his  money  or  his  labor  upon  it,  at  the  request 
of  the  owner,  a  right  to  retain  it  until  his  demand  is  satisfied.'  .   .   . 

"A  lien,  as  we  have  seen,  is  a  personal  right,  as  well  as  an  interest 
which  can  only  be  created  by  the  owner,  or  by  his  authority.  If 
Fifield,  by  virtue  of  his  contract  with  the  defendants,  had  a  lien  upon 
the  wood,  the  plaintiff  could  acquire  no  lien  upon  the  property  through 
him.  The  plaintiff,  as  a  creditor  of  Fifield,  could  not  attach  and  hold, 
as  against  the  owner,  at  the  common  law,  the  property  in  which  Fifield 
had  but  the  qualified  interest  of  a  pledgee.  Lovett  v.  Broivn,  40  N.  H., 
511.  Neither  is  a  lien  for  the  price  of  labor  performed  on  an  article 
assignable.    Bradley  v.  Spofford,  23  N.  H.,  447.  .  .  . 

"The  statutes  of  liens  have  enlarged  the  privileges  of  the  party  who, 
at  common  law,  could  only  as  bailee  avail  himself  of  the  lien,  by  sub- 
stituting, in  the  enumerated  cases,  attachment  of  the  property  for 
retention  of  possession;  but  it  would  be  quite  anomalous  to  regard 
this  process  of  attachment  as  applying  in  favor  of  a  stranger  against 

55  (1855)  2  Curtis,  404,  406,  410,  411,  412,  414. 

56  (1900)  177  U.  S.,  655,  666. 


AS  APPLIED  IX  JUDICIAL  REASONING  89 

a  party  with  whom  the  phiintiff  never  eontracted.  and  who  could  in 
no  proper  sense  be  regarded  as  an  attaching  crrditor.  .    .    .  "^' 

The  passage  from  Mr.  Justice  Foster — the  last  of  the  above  ([nota- 
tions— seems  open  to  comment.  If  at  common  law  the  lien  of  tiie 
mechanic,  manufacturer  or  other  laborer  consists  of  the  "right  to 
retain"  the  "thing"  in  his  possession  or.  to  use  ^Ir.  Justice  Foster's 
own  later  and  more  discriminating  term,  a  "privilege"  of  retaining 
possession,  this  is  certainly  a  '^ privilege"  relating  to  a  "thing." 
More  than  that,  such  privileges  are  multital  privileges,  or  privileges 
in  rem,  existing  not  only  against  the  (Jwner  of  the  chattel  but  also 
against  all  persons  in  general,  and  correlating  with  no-rights  in  the 
latter.  These  multital  privileges  relate  directly  to  the  physical 
"thing" ;  and  they  are  "rights"  in  the  very  broad  sense  of  that  term. 
It  is  difficult,  therefore,  to  see  why  the  term  jus  in  re  should  not  be 
applicable.  For  the  latter  term  does  not  seem  to  be  confined  to  rights 
in  the  sense  of  elaims,  this  being  shown  by  the  above-quoted  opinion 
of  Mr.  Justice  Curtis,  whose  characterization  of  common-law  liens  is 
opposed  to  that  of  Mr.  Justice  Foster.  It  is  also  clear  that  the  lienor 
has,  by  virtue  of  his  possession  j^er  se,  rights  //;  rem  against  all  others 
that  they  shall  not  disturl)  that  possession  or  harm  the  object  posses.sed. 
These  last  are  rights  or  claims  literally  relating  to  the  thing;  and, 
therefore,  so  far  at  least  as  the  literal  meaning  of  jus  in  re  is  concerned 
there  seems  to  be  no  reason  why  the  latter  expression  should  not  be 
applied.  It  is  true  that  if  the  lienor  were  to  surrender  possession  he 
would  thereby  elivest  himself  of  his  privilege  (against  the  owner)  and 
his  rights,  or  claims,  against  the  owner  and  others;  but  while  those 
relations  exist  they  concern  the  thing,  and  that  fact  is  obviously  not 
negatived  by  the  possibility  of  their  being  divested. 

The  passage  last  quoted  from  'Mr.  Justice  ]\Iarkl)y  and  also  the 
extracts  from  the  opinions  of  Lord  Kinnear  and  !Mr.  Justice  Curtis 
show  that  those  rights  in  rem  which  directly  relate  to  ttiings — land. 
vessels,  etc. — instead  of  being  called  jus  in  re  are  occasionally  denomi- 
nated ''real" — a  term  meaning  literally,  of  course,  "relating  to  a 
thing."  "Reed  rights"  in  this  sense  are  opposed  to  rights  /;}  personam 
relating  to  things.  Thus,  e.g.,  if  A  is  owner  of  a  horse,  he  has  jus  in  re 
or  "real  rights";  if,  on  the  other  hand.  X  is  under  contract  lo  transfer 
the  ownership  of  a  horse  to  A,  the  latter  has  that  sort  of  right  in 
personam  which  would  sometimes  be  called  jus  ad  rem,  or  ''personal 
right."  In  the  restricted  sense  now  referred  to.  it  seems  clear  that 
real  rights  as  a  class  also  exclude  both  rights  in  per.'^onam  and  rigiit.s 


C7  (1870)  50  N.  IL,  71,  75, 


90  FUNDAMENTAL  LEGAL  CONCEPTIONS 

?n  rem  that  do  not  relate  directly  to  things,  or  tangible  objects.     The 
following  passages  may  be  considered  with  advantage : 

1914,  Professor  E.  C.  Clark,  History  of  Roman  Law:  Jurisprudence: 

"Jura  realia  and  personalia  are  expressions  occasionally  used  by 
modern  civilians  as  adjectival  forms  for  jura  in  rem  and  in  personam, 
but  only  as  confined  to  Property  Law.  [E.g.,  the  translator  of 
Mackeldey,  Pr.  ii.  §  15.  Austin  {T.  and  iV.  ii.  5,  pp.  977,  978 ;  St.  Note 
on  Lect.  14,  p.  184)  identifies  the  pairs  without  the  above  qualifica- 
tion.] This  at  least  seems  to  be  the  meaning  given  by  Savigny  to  jura 
realia,  if  represented  by  the  corresponding  German  dingliche  Rechte. 
[System,  1,  §  56,  p.  369.  Alle  mogliche  Rechte  an  Sachen  .  .  .  fassen 
wir  unter  dem  gemeinsamen  Namen  der  dinglichen  Rechte  zusam- 
men.]  "^* 

1855,  Mr.  Justice  B.  R.  Curtis,  in  The  Young  Mechanic: 

"The  distinction  between  a  jus  in  re  and  a  jus  ad  rem  was  familiar 
to  lawyers  of  the  ^Middle  Ages,  and  is  said  then  to  have  first  come  into 
practical  use,  as  the  basis  of  the  division  of  rights  into  real  and  per- 
sonal. Sanders's  Intro,  to  Just.  p.  49.  A  jus  in  re  is  a  right,  or  prop- 
erty in  a  thing,  valid  as  against  all  mankind.  A  jus  ad  rem  is  a  valid 
claim  on  one  or  more  persons  to  do  something,  by  force  of  which  a 
jus  in  re  will  be  acquired.  Pothier,  Traite  du  Droit  de  Domaine,  ch. 
Pretences;  Hugo,  His.  du  Droit  Rom.  vol.  1,  p.  118."^^ 

1914,  Lord  Kinuear,  in  Bank  of  Scotland  v.  Macleod: 

"But  to  extend  Lord  Westbury's  phrase  so  as  to  make  It  cover 
personal  oMigations  which  do  not  affect  the  real  right  of  the  obligor 
seems  to  me  altogether  extravagant.  It  was  maintained  in  argument 
that  every  obligation  Avith  reference  to  any  property  or  fund  which 
involves  a  liability  to  account  fell  within  the  principle.  If  that  were 
so  every  imperfect  security,  however  invalid  as  a  real  right,  would  be 
effectual  as  a  trust. '  '^° 

Even  when  restricted  as  above  indicated,  the  pair  of  terms,  "real" 
and  "personal,"  seems  an  undesirable  one  for  English-speaking 
lawyers  and  judges  because  those  words  are  already  definitely  appro- 
priated to  different  and  independent  classifications  and  are  constantly 
applied  in  connection  with  the  latter.  Thus,  e.g.,  we  have  "real 
property"  and  "personal  property";  and  this  classification  is  obvi- 
ously not  parallel  with  that  of  "real  rights"  and  "personal  rights" — 
both  of  the  latter  terms  being  applicable  either  to  "personal  property  "^ 
relations  or  to  "real  property"  relations.  Then,  too,  the  expression 
"personal  rights"  is  especially  misleading  in  its  connotation  because, 
literally,  it  tends  to  suggest  rights  concerning  a  person  as  the  object 

^s  History  of  Eoman  Law:  Jurisprudence  (1914),  Vol.  II,  ]).  71S. 

59  (18.55)  2  Curtis,  404,  412. 

60  [1914J  A.  C,  311,  324. 


AS  APPIJED  IX  .TTDICIAL   REASOXIXG  91 

to  whic'li  the  rights  reUiti*.  that  is,  citlier  the  pci-sou  wlio  holds  the 
rights  or  some  other  person.  It  is  therefore  most  fortunate  that  the 
pair  of  terms,  ''real  rights"  and  "personal  rights,"  is  not  at  all 
common  in  judicial  opinions  or  in  legal  treatises.  Over  against  this. 
however,  it  must  be  recognized  that  courts  not  infrequently  use  a 
somewhat  similar  pair  of  terms,  viz.,  the  expression  "personal  rights" 
or  "personal  claims"  in  opposition  to  some  such  expression  as  "j)rop- 
erty  right,"  "title  to  land,"  "interest  in  the  thing,"  etc.*^ 

Finally,  as  regards  this  particular  matter,  it  must  be  regretted  tliat 
some  authors,  thougli  no  courts  whatever,  so  far  as  has  ])een  observed, 
use  the  terms  "real  rights"  and  "personal  rights"  as  exact  equiva- 
lents, respectively,  for  all  kinds  of  rights  in  rem  (whether  relating 
directly  to  things  or  to  persons  or  to  neither)  and  all  kinds  of  rights 
in  personam.  It  is  greatly  to  be  hoped  that  sucii  an  unusual  and,  for 
the  English  law,  misleading  use  of  terms  will  not  become  at  all 
common. 

(c)  A  single  multital  right,  or  claim  (right  in  rem),  correlates  with 
a  duty  resting  on  one  person  alone,  not  with  many  duties  {or  one 
duty)  resting  vpon  all  the  members  of  a  very  large  and  indefinite 
class  of  persons:  Though  fairly  implicated  with  what  has  been  said  in 
the  "preliminary"  explanation  of  ideas  and  terms,"-  this  proposition 
now  requires  more  detailed  consideration ;  for  it  represents  a  con- 
siderable departure  from  the  explanations  or  analyses  to  be  found  in 
treatises  on  jurisprudence  or  in  books  on  particular  branches  of  the 
law.    Let  us  first  have  definitely  before  us  some  typical  passages : 

1832,  Professor  John  Austin,  Lectures  on  Jurisprudence,  or  the 
Philosophy  of  Positive  Law: 

"All  rights  reside  in  persons,  and  are  rights  to  acts  or  forbearances 
on  the  part  of  other  persons.  .   .   . 

"The  essentials  of  a  right  in  rem  are  these: 

"It  resides  in  a  determinate  person,  or  in  determinate  persons,  and 
avails  against  other  persons  universally  or  generally.  Further,  the 
duty  with  which  it  correlates,  or  to  which  it  corresponds,  is  negative : 
that  is  to  say,  a  duty  to  forbear  or  abstain.  .    .    . 

"The  duty  which  correlates  with  [a  right  //(  n  m]  attaclu^s  upon 
persons  generally. ' "^^ 


61  See  the  qutHuiiuiirs  -utii  ante:  Mr.  Justice  Holmes,  pp.  83-84;  Mr.  Justice 
Brandeis,  p.  85 ;  Lord  Suniuer,  p.  84. 

See  also  the  term  "personal  rights''  as  used  by  Mr.  .Justice  Holmes,  dissentinfj, 
in  the  very  recent  case  of  Southern  Pacific  Co.  v.  Jensen  (1917),  244  U.  S.,  205; 
37  Sup.  Ct.,  524. 

62  See  ante,  pp.  72  fl". 

02  Jurisprudence  (5th  ed.,  1S85),  Vol.  I,  pp.  368.  394,  371,  586. 


92  FUNDAMENTAL  LEGAL  CONCEPTIONS 

1871,  Mr.  Justice  Markby,  Elements  of  Law: 

"The  persons  to  whom  a  right  in  rem  belongs  may  be  changed  to 
any  extent  within  the  limits  allowed  by  the  law,  but  the  persons  upon 
whom  the  duty  corresponding  to  a  right  in  rem  is  imposed  cannot  be 
changed,  because  all  persons  are  under  that  duty."®* 

1880,  Professor  Thomas  Erskine  Holland,  Elements  of  Juris- 
prudence: 

"A  right  is  available  either  against  a  definite  person  or  persons,  or 
against  all  persons  indefinitely.  .   .   . 

"This  distinction  between  rights  has  been  expressed  by  calling  a 
right  of  the  definite  kind  a  right  in  personam,  of  the  indefinite  kind 
a  right  in  rein."^'' 

1902,  Mr.  Solicitor-General  Salmond,  Jurisprudence: 

"A  real  right  corresponds  to  a  duty  imposed  on  persons  in  general. 
.  .  .  The  indeterminate  incidence  of  the  duty  which  corresponds  to 
a  real  right,  renders  impossible  many  modes  of  dealing  with  it  which 
are  of  importance  in  the  case  of  personal  rights. '  '"^ 

1915,  Professor  Harlan  Fiske  Stone,  Law  and  Its  Administration: 

"One  may  have  a  right  against  all  members  of  the  community 
indifferently.  Thus  one  has  the  right  not  to  have  his  person  or  his 
property  unlawfully  interfered  with,  and  this  right  exists  generally 
against  all  members  of  the  community."*'^ 

1916,  Professor  Samuel  "Williston,  7s  the  Bight  of  an  Assignee  of 
a  Chose  in  Action  Legal  or  Equitahle? 

"Though  legal  ownership  is  conceived  fundamentally  as  a  right 
good  against  all  the  world,  actual  instances  of  such  ownership  are 
often  much  more  narrowly  limited.  The  owner  of  a  chattel  which  has 
been  stolen  from  him  is  likely  to  find  his  right  against  the  tvorld  con- 
siderably qualified  if  the  thief  is  in  a  place  where  the  principles  of 
market  overt  prevail."**^ 

In  opposition  to  the  ideas  embodied  in  the  passages  just  given,®^  it 
is  submitted  that  instead  of  there  being  a  single  right  with,  a  single 
correlative  duty  resting  on  all  the  persons  against  whom  the  right 
avails,  there  are  many  separate  and  distinct  rights,  actual  and  poten- 
tial, each  one  of  which  has  a  correlative  duty  resting  upon  some  one 
person.  Repeating  a  hypothetical  case  put  above,  let  us  suppose  that 
A  is  the  owner  of  Blackacre  and  X  is  the  owner  of  Whiteacre.     It 

<^i  Elements  of  Law  (6th  ed.,  1905),  pp.  91,  99. 
65  Jurisprudence  (10th  ed.,  1906),  p.  139. 
f^Q  Jurisprudence  (4th  ed.,  1913),  pp.  202,  203. 
^"^  Law  and  Its  Administration  (19]5),  p.  53. 

68  (1916)  30  Harvard  Law  Review,  97,  98. 

69  See  also  the  various  judicial  opinions  from  whir-h  quotations  are  given  ante, 
pp.  82-85. 


AS  APPLIED  IN  .JIDICIAL  liEASONING  93 

may  be  assunu'd  further  that,  in  consideration  of  $100  (i<  tually  paid 
by  A  to  B,  the  latter  agrees  with  A  never  to  enter  on  X's  land,  White- 
acre  ;  also  that  C  and  D,  at  the  same  time  and  for  separate  considera- 
tions, make  respectively  similar  agreements  with  A.  in  such  a  case 
A's  respective  rights  against  B,  C,  and  I)  are  clearly  rights  //(  }><  rso- 
nam,  or  paucital  rights.  Surely  no  one  would  assert  that  A  has  only 
a  single  right  against  B,  C,  and  1),  with  only  a  single  or  unified  duty 
resting  on  the  latter.  A's  right  against  B  is  entirely  separate  from 
the  other  two.  B  may  commit  a  breach  of  his  duty,  without  involving 
any  breach  of  C's  duty  by  C  or  any  breach  of  D's  duty  by  I).  For, 
obviously,  the  content  of  each  respective  duty  differs  from  each  of 
the  others.  To  make  it  otherwise  C  and  D  would  have  to  be  under  a 
duty  or  duties  (along  with  B)  that  B  should  not  enter  on  X's  land. 
Even  if  that  were  the  case,  thei-e  would  be  said  to  be  three  separate 
duties  unless  B,  C,  and  1)  bound  themselves  so  as  to  create  a  so-called 
joint  obligation.  In  the  latter  case  alone  would  there  be  said  to  be 
a  single  right  and  a  single  (joint)  duty.  Going  beyond  this  direct 
analysis  of  the  situation,  it  seems  clear  that  the  three  respective 
"right — duty"  relations  of  A  and  B,  A  and  C,  and  A  and  D  respond 
to  every  test  of  separateness  and  independence.  A  might,  e.g.,  dis- 
charge B  from  his  duty  to  A,  thus  (in  equivalent  terms)  creating  a 
privilege  of  entering  as  against  A  (not  as  against  X,  of  coui-se)  ;  yet, 
obviously,  the  respective  duties  of  C  and  D  would  continue  the  same 
as  before.    So  on  indefinitely. 

Point  for  point,  the  same  considerations  and  tests  seem  api)licable 
to  A's  respective  rights  in  rem,  or  multital  rights,  against  B,  C,  D, 
and  others  indefinitely,  that  they,  ivspectively  considered,  shall  not 
enter  on  Blackacre.  It  is  not  a  case  of  one  joint  duty  of  the  same  con- 
tent resting  on   all — e.g.,   that   B   should   not  enter   on    Blackacre."'* 

'"  Pompare,  however,  special  cases  like  Thorpe  v.  Brumftt  (1S7.T),  L.  K.  S  Ch. 
App.,  650,  involving  a  suit  for  an  injunction  against  several  defendants  for  dis- 
turbance of  plaintiff's  right  of  way.  Lord  .Tustice  James  said:  "The  plaintiff 
cannot  complain,  unless  he  can  prove  an  obstruction  which  injures  him.  The  case 
is  not  like  one  of  trespass,  which  gives  a  right  of  action  though  no  damage  be 
proved.  In  the  present  case,  I  cannot  come  to  any  other  conclusion  than  that 
arrived  at  by  the  Master  of  the  Rolls,  that  the  right  of  access  to  the  inn-yard  has 
been  interfered  with  in  a  way  most  prejudicial  to  the  Plaintiff.  Nothing  can  be 
much  more  injurious  to  the  owner  of  an  inn  than  that  the  way  to  his  yard  should 
be  constantly  obstructed  by  the  loading  and  unloading  of  heavy  waggons.  If  a 
person  who  was  going  to  put  up  his  horses  at  the  inn  was  stopped  by  the  loading 
or  unloading  of  waggons,  he  would  probably  at  once  go  to  another  inn.  Then  it 
was  said  that  the  Plaintiff  alleges  an  ohstrurtioit  cnuscd  by  sivcral  }»  rsons  ai'ting 
inilepcndcntlii  of  each  other,  and  does  not  shew  wh:it  share  each  had  in  causing  it. 
It  is  probably  impossible  for  a  person  in  the  Plaintiff's  |)osition  to  shew  this.     Nor 


94  FUNDAMENTAL  LEGAL  CONCEPTIONS 

Consistently  with  this  view,  A  might,  e.g.,  extinguish  B  's  duty  or,  in 
other  words,  grant  B  the  privilege  of  entering  by  giving  "leave  and 
license"  to  do  so.  In  such  event,  of  course,  the  respective  duties  of 
C,  D,  E,  and  all  others  would  continue  to  exist,  precisely  as  before. 

In  order  to  see  even  more  clearly  that  the  supposed  single  right  in 
rem  correlating  with  "a  duty"  on  "all"  persons  really  involves  as 
many  separate  and  distinct  "right— duty"  relations  as  there  are 
persons  subject  to  a  duty,  it  may  be  worth  while  to  reverse  the  situa- 
tion somewhat,  and  consider,  in  anticipation  of  a  more  general  treat- 
ment at  a  later  point,  the  subject  of  duties  in  rem,  or  multital  duties. 
Thus,  e.g.,  X  is  under  duty  not  to  strike  R,  S,  T,  or  any  other  ordinary 
member  of  the  community.  Are  we  to  say  that,  as  regards  these  many 
persons,  X  has  but  a  single  duty,^^  and  that,  correlatively,  there  is  but 
a  single  right  held  by  R,  S,  T,  and  all  the  others  ?  Manifestly  not,  for 
each  one  of  these  persons  has  a  distinct  and  independent  right;  and 
any  one  of  such  independent  rights  might  cease  to  exist  without  in  the 
least  affecting  the  others.  If,  e.g.,  R  threatens  bodily  harm  to  X, 
R's  right  that  X  shall  not  strike  him  becomes  thereby  extinguished, 
and  a  no-right  in  R  substituted ;  or,  correlatively,  in  such  contingency, 
X  's  duty  to  R  ceases,  and  X  acquires  a  privilege  of  self-defense  against 
R.  But  such  change  in  no  way  affects  the  entirely  distinct  relations 
existing  between  X  and  the  various  other  persons  involved.  As 
regards  the  separateness  and  relativity  of  all  "right — duty"  relations, 
the  following  judicial  reasoning  seems  accurate  and  persuasive : 

1908,  Mr.  Justice  Connor,  in  McGhee  v.  R.  Co.: 

"It  is  elementary  that  plaintiff  had  no  cause  of  action  against 
defendants  for  placing  the  dynamite  in  the  shanty.  He  must  establish 
some  relation  between  defendants  and  himself' irom  which  a  duty  to 
him  is  imposed  upon  defendants.    'The  expression  "duty"  properly 

do  I  think  it  necessary  that  he  should  shew  it.  The  amount  of  obstruction  caused 
by  any  one  of  them  might  not,  if  it  stood  alone,  be  sufficient  to  give  any  ground 
of  complaint,  though  the  amount  caused  by  them  all  may  be  a  serious  injury. 
Suppose  one  person  leaves  a  wheelbarrow  standing  on  a  way,  that  may  cause  no 
appreciable  inconvenience,  but  if  a  hundred  do  so,  that  may  cause  a  serious  incon- 
venience, which  a  person  entitled  to  the  use  of  the  -way  has  a  right  to  prevent ;  and 
it  is  no  defence  to  any  one  person  among  the  hundred  to  say  that  what  he  does 
causes  of  itself  no  damage  to  the  complainant." 

71  Some  would  say  yes:  compare  Sir  Frederick  Pollock,  Jurisprudence  (2d  ed., 
1904),  64:  "Doubtless  there  are  duties  without  any  determinate  rights  corre- 
sponding to  them:  indeed,  this  is  the  case,  in  any  view,  with  the  negative  duties 
which  we  owe  to  the  community  at  large.  For  my  duty  not  to  damage  other 
people's  goods,  for  example,  is  one  duty,  not  millions  of  separate  duties  owed  to 
every  one  who  has  anything  to  be  damaged,  or  in  respect  of  every  separate  chattel 
of  any  value. ' ' 


AS  APPLIED  IX  JIDJCIAL  HEASONING  95 

imports  a  determinate  person  to  irhom  the  obligation  is  owing,  as  well 
as  the  one  who  owes  the  obligation.  There  must  be  two  determinate 
parties  before  the  relationship  of  obligor  and  obligee  of  a  dutv  can 
exist. '"'2 

"With  this  passage  we  may  well  compare  the  instructive  opinion  of 
an  eminent  English  judge  emphasizing  the  distinct  and  relative  char- 
acter of  each  "privilege — no-right"  relation  connected  with  a  givt-n 
matter,  his  observations  being  equally  applicable  to  ''rigiit — duty"' 
relations : 

1906,  Lord  Collins,  M.  R.,  in  Thomas  v.  Bradbury,  A(jntw,  i("  Co., 
Ltd.: 

"The  right"  [privilege]  "of  fair  comment,  though  shared  by  the 
public,  is  the  right"  [privilege]  "of  every  individual  who  asserts  it, 
and  is,  qua  him.,  an  individual  right  whatever  name  it  be  called  by, 
and  comment  by  him  which  is  coloured  by  malice  cannot  from  his 
standpoint  be  deemed  fair.  He.  and  he  only,  is  the  person  in  whose 
motives  the  plaintiff  in  the  libel  action  is  concerned,  and  if  he,  the 
person  sued,  is  proved  to  have  allowed  his  view  to  be  distorted  by 
malice,  it  is  quite  immaterial  that  somebody  else  might  without  malice 
have  written  an  equally  damnatory  criticism.  The  defendant,  and  not 
that  other  person,  is  the  party  sued.  ""^ 

If,  then,  the  foregoing  line  of  reasoning  be  sound,  the  following 
points  would  seem  to  be  rea.sonably  clear:  A  right  in  rem.  or  nndtital 
right,  correctly  understood,  is  simply  one  of  a  large  number  of  funda- 
mentally similar  rights  residing  in  one  person  ;  and  any  one  of  such 
rights  has  as  its  correlative  one,  and  only  one,  of  a  large  number  of 
general,  or  common,  duties, — that  is,  fundamentally  similar  duties 
residing  respectively  in  ma)ty  different  persons.  Similarly,  a  duty 
in  rem,  or  multital  duty,  is  one  of  a  large  number  of  fundamentally 
similar  duties  residing  in  one  person  :  and  any  one  of  such  duties  has 
as  its  correlative  one  of  a  large  number  of  general,  or  common,  rights, 
or  claims, — that  is,  fundamentally  similar  rights,  or  claims,  residing 
respectively  in  many  different  persons.  Tt  is  therefore  to  be  hoped 
that,  instead  of  continuing  to  be  used  to  indicate  the  entire  multiplicity 
of  separate  and  independent  rights,  or  claims,  that  a  person  may  have 
against  many  others,  the  term  right  in  rem  may  gradually  come  to  be 
used  to  represent  one,  and  only  one,  of  this  tnultiplicity  of  distinct 
rights.  Whatever  be  the  fate  of  the  concept  and  term,  right  in  rem, 
in  this  regard,  it  is  surely  of  the  utmost  importance  that  the  various 
possible  analyses  and  meanings  involved  be  carefully  pondered  and 
understood;  and,  in  the  meanwhile,  the  term  "multital" — free  as  it 

"  (1908)   147  X.  C,  142,  146.  "  [1906]  2  K.  B..  627.  638. 


96  FUNDAMENTAL  LEGAL  CONCEPTIONS 

is  from  any  previous  hazy  connotations — will  without  question  serve 
definitely  to  indicate  one,  and  one  only,  of  such  a  multiplicity  of  rights 
as  is  now  under  consideration. 

(d)  A  multital  right,  or  claim  {right  in  rem),  should  not  he  con- 
fused ivith  any  co-existing  privileges  or  other  jural  relations  that  the 
holder  of  the  multital  right  or  rights  may  have  in  respect  to  the  same 
subject-matter:  As  already  incidentally  noticed,  it  is  feared  that  the 
exact  nature  of  multital  rights  has  been  greatly  obscured  not  only  by 
the  habitual  tendency  to  treat  a  multiplicity  of  fundamentally  similar 
rights,  or  claims,  as  if  they  were  only  one,  but  also  by  the  equally 
strong  tendency  to  include  under  the  hazy  blanket-term,  right  in  rem, 
especially  in  the  case  of  tangible  objects,  the  multiplicity  of  privileges 
and  other  jural  relations  that  the  holder  of  the  multital  right  or  rights 
may  have. 

Suppose,  for  example,  that  A  is  fee-simple  owner  of  Blackacre.  His 
"legal  interest"  or  "property"  relating  to  the  tangible  object  that 
we  call  land  consists  of  a  complex  aggregate  of  rights  (or  claims), 
privileges,  powers,  and  immunities.'^*  First,  A  has  multital  legal 
rights,  or  claims,  that  others,  respectively,  shall  not  enter  on  the  land, 
that  they  shall  not  cause  physical  harm  to  the  land,  etc.,  such  others 
being  under  respective  correlative  legal  duties.  Second,  A  has  an 
indefinite  number  of  legal  privileges  of  entering  on  the  land,  using 
the  land,  harming  the  land,  etc.,  that  is,  within  limits  fixed  by  law  on 
grounds  of  social  and  economic  policy,  he  has  privileges  of  doing  on 
or  to  the  land  what  he  pleases ;  and  correlative  to  all  such  legal  privi- 
leges are  the  respective  legal  no-rights  of  other  persons.  Third,  A  has 
the  legal  power  to  alienate  his  legal  interest  to  another,  i.e.,  to  extin- 
guish his  complex  aggregate  of  jural  relations  and  create  a  new  and 
similar  aggregate  in  the  other  person ;  also  the  legal  power  to  create 
a  life  estate  in  another  and  concurrently  to  create  a  reversion  in 
himself;  also  the  legal  power  to  create  a  privilege  of  entrance  in  any 
other  person  by  giving  ' '  leave  and  license ' ' ;  and  so  on  indefinitely. 
Correlative  to  all  such  legal  powers  are  the  legal  liabilities  in  other 
persons — this  meaning  that  the  latter  are  subject  nolens  volens  to  the 
changes  of  jural  relations  involved  in  the  exercise  of  A's  powers. 
Fourth,  A  has  an  indefinite  number  of  legal  immunities,  using  the 
term  immunity  in  the  very  specific  sense  of  non-liability  or  non-sub- 

-i  See  (1913)  23  Yale  Law  Journal,  21,  24,  59,  supra,  pp.  28,  30,  31,  64.  Com- 
pare also  Mr.  Justice  Foster,  in  PuUitzer  v.  Livingston  (1896),  89  Me.,  359:  "With 
all  the  rights,  privileges,  and  powers  incident  to  ownership,"  etc. 

See  also  Professor  Arthur  L.  Corbin,  Offer  and  Acceptance  and  Some  of  the 
Sesulting  Legal  Belations,  (1917)  26  Yale  Law  Journal,  172, 


AS  APPLIED   IX  .ITDICIAL  REASOXIN'G  97 

jection  to  a  power  on  the  part  of  another  person.  Tims  A  has  the 
immunity  that  no  ordinary  pci-son  ean  alienate  A's  legal  interest  or 
aggregate  of  jural  relations  to  another  person;  the  immunity  that  no 
ordinary  person  ean  extinguish  A's  own  privileges  of  using  the  land; 
the  inumuiity  that  no  ordinary  jjei-son  ean  extinguish  A's  right  that 
another  person  X  shall  not  enter  on  the  land  or,  in  other  words,  ereate 
in  X  a  privilege  of  entering  on  the  land.  Correlative  to  all  these 
immunities  are  the  respective  legal  disabilities  of  other  persons  in 
general. 

Tn  short,  A  has  vested  in  himself,  as  regards  Blaekaere,  multital,  or 
in  rem,  "right — duty"  relations,  multital,  or  in  rem,  "privilege — no- 
right"  relations,  multital,  or  in  rem,  "power — lial)ility"  relations, 
and  multital,  or  in  ron,  "immunity — disability"  relations.  It  is  im- 
portant, in  order  to  have  an  adequate  analytical  view  of  property,  to 
see  all  these  various  elements  in  the  aggregate.  It  is  ef|ually  impor- 
tant, for  many  reasons,  that  the  different  classes  of  jural  relations 
should  not  be  loosely  confused  with  one  another.  A's  privileges,  e.g., 
are  strikingly  independent  of  his  rights  or  claims  against  any  given 
person,  and  either  might  exist  without  the  other.  Thus  A  might,  for 
$100  paid  to  him  by  B,  agree  in  -writing  to  keep  off  his  own  land, 
Blaekaere.  A  would  still  have  his  rights  or  claims  against  B,  that  the 
latter  should  keep  off,  etc.;  yet,  as  against  B,  A's  own  privileges  of 
entering  on  Blaekaere  would  be  gone.  On  the  other  hand,  with  regard 
to  X's  land,  Whiteacre,  A  has,  as  against  B,  the  privilege  of  entering 
thereon ;  but,  not  having  possession,  he  has  no  right,  or  claim,  that  B 
shall  not  enter  on  Whiteacre. 

Not  only  as  a  matter  of  accurate  analysis  and  exposition,  but  also 
as  a  fact  of  great  practical  consequence  and  economic  significance, 
the  property  owner's  rights,  or  claims,  should  be  sharply  differentiated 
from  his  privileges.  It  is  sometimes  thought  that  A 's  rights,  or  claims, 
are  created  by  the  law  for  the  sole  purpose  of  guarding  or  protecting 
A's  own  i^hysical  user  or  enjoyment  of  the  land,  as  if  such  physical 
user  or  enjoyment  of  the  land  were  the  only  economic  factor  of  im- 
portance. A  moment's  reflection,  however,  shows  that  this  is  a  very 
inadequate  view.  Even  though  the  land  be  entindy  vacant  and  A  have 
no  intention  whatever  of  personally  using  the  land,  his  rights  or  claims 
that  others  shall  not  use  it  even  temporarily  in  sucdi  ways  as  would  not 
alter  its  physical  character  are,  generally,  of  great  economic  signifi- 
cance as  tending  to  make  others  compensate  A  in  exchange  for  the 
extinguishment  of  his  rights,  or  claims,  or  in  other  words,  the  creation 
of  privileges  of  user  and  enjoyment.  This  has  been  emphasized  by  an 
eminent  English  judge: 


98  FUNDAMENTAL  LEGAL  CONCEPTIONS 

1874,  Lord  Selborne,  Chancellor,  in  Goodson  v.  Richardson:''^ 

"It  is  said  that  the  objection  of  the  plaintiff  to  the  laying  of  these 
pipes  in  his  land  is  an  nnneighborly  thing,  and  that  his  right  is  one  of 
little  or  no  value,  and  one  which  Parliament  if  it  were  to  deal  with  the 
question,  might  possibly  disregard.  "What  Parliament  might  do,  if  it 
M-ere  to  deal  with  the  question,  is,  I  apprehend,  not  a  matter  for  our 
consideration  now,  as  Parliament  has  not  dealt  with  the  question. 
Parliament  is,  no  doubt,  at  liberty  to  take  a  higher  view  upon  a  balance 
struck  between  private  rights  and  public  interests  than  this  Court 
can  take.  But  with  respect  to  the  suggested  absence  of  value  of  the 
land  in  its  present  situation,  it  is  enough  to  say  that  the  very  fact  that 
no  interference  of  this  kind  can  lawfully  take  place  without  his  con- 
sent, and  without  a  bargain  with  him,  gives  his  interest  in  this  land, 
even  in  a  pecuniary  point  of  view,  precisely  the  value  which  that 
power  of  veto  upon  its  use  creates,  when  such  use  is  to  any  other  person 
desirable  and  an  object  sought  to  be  obtained.  "^"^ 

Even  so  able  and  cautious  a  thinker  as  Austin  seems  to  have  con- 
fused legal  privileges  with  legal  rights  (in  the  sense  of  claims),  and 
also,  at  times,  to  have  confused  mere  physical  power  and  liberty  both 
with  legal  privileges  and  with  legal  rights.  Probably  because  of  the 
very  failure  to  make  these  necessary  and  important  discriminations, 
he  appears  to  have  overlooked,  or  at  least  seriously  underrated,  the 
practical  and  economic  significance  of  the  landowner 's  ' '  right — duty ' ' 
relations  considered  wholly  apart  from  their  being  guardians  of  the 
"privilege — no-right"  relations,  or  protectors  of  the  physical  liberty 
and  power  involved  in  the  exercise  of  such  legal  privileges : 

1832,  Professor  John  Austin,  Lectures  on  Jurisprudence,  or  the 
Philosophy  of  Positive  Law: 

' '  Now  the  ends  or  purposes  of  different  rights  are  extremely  various. 
The  end  of  the  rights  in  rem.  which  are  conferred  over  things,  is  thisr 
that  the  entitled  party  may  deal  Avith,  or  dispose  of,  the  thing  in 
question  in  such  or  such  a  manner  and  to  such  or  such  an  extent.  In 
order  to  that  end,  other  persons  generally  are  laid  under  duties  to 
forbear  or  abstain  from  acts  which  would  defeat  or  thwart  it.  .    .   . 

"As  I  stated  in  my  last  lecture,  I  mean  by  property  or  dominion 
(taken  with  the  sense  wherein  I  use  the  term,  for  the  present)  any 
such  right  in  rem  (of  limited  or  unlimited  duration)  as  gives  to  the 
party  in  whom  it  resides  an  indefinite  power  or  liberty  of  using  or 
dealing  with  the  subject :  A  power  or  liberty  of  using  or  dealing  with 
the  subject  which  is  not  capable  of  exact  circumscription  or  definition ; 
which  is  merely  limited,  generally  and  indefinitely,  by  the  sum  of  the 
duties  (relative  and  absolute)  incumbent  on  the  owner  or  pro- 
prietor. .  .  . 

-5  (1874)  L.  R.  9  Ch.  App.,  221,  223. 

76  Compare  Henry  Pitney,  V.  C,  in  Eennessy  v.  Carmony  (1892),  50  N.  J.  Eq.,, 
616. 


AS  APPLIED  IN  JUDICIAL  REASONING  99 

"The  power  of  user  and  the  power  of  exclusion  are  equally  rights 
to  forbearances  on  the  part  of  other  persons  generally.  liy  virtue  of 
the  right  or  power  of  indefinitely  using  the  subject,  other  persons 
generally  are  bound  to  forbear  fronidisturbingtlieowncrinactsof  user. 
By  virtue  of  the  right  or  power  of  excluding  other  persons  generally, 
other  persons  generally  arc  bound  to  forbear  from  using  or  meddling 
with  the  subject.  The  rights  of  user  and  exclusion  are  so  blended, 
that  an  offence  against  the  one  is  commonly  an  offence  against  the 
other.  1  can  hardly  prevent  you  from  ploughing  your  field,  or  from 
raising  a  building  upon  it,  without  committing,  at  the  same  time,  a 
trespass'.  And  an  attempt  on  my  part  to  use  the  subject  (as  an 
attempt,  for  example,  to  fish  in  your  pond)  is  an  interference  with 
your  right  of  user  as  well  as  with  your  right  of  exclusion.  But  an 
offence  against  one  of  these  rights  is  not  of  necessity  an  offence  against 
the  other.  If,  for  example,  I  walk  across  your  field,  in  order  to  shorten 
my  way  to  a  given  point,  I  may  not  in  the  least  injure  you  in  respect  of 
your  right  of  user,  although  I  violate  your  right  of  exclusion.  Viola- 
tions of  the  right  of  exclusion  (when  perfectly  harndess  in  themselves) 
are  treated  as  injuries  or  offences  by  reason  of  their  probable  effect  on 
the  rights  of  user  and  exclusion.  A  harmless  violation  of  the  right  of 
exclusion,  if  it  passed  Anth  perfect  impunity,  might  lead,  by  force  of 
the  example,  to  such  numerous  violations  of  the  right  as  would  render 
both  rights  nearly  nugatory."" 

In  these  various  passages,  and  especially  in  the  last  one,  Austin 
uses  the  term  "right"  indiscriminately  and  confusedly  to  indicate 
both  those  jural  relations  that  are  legal  rights,  or  claims,  and  those 
that  are  legal  privileges — a  lapse  all  the  more  surprising  in  view  of 
the  fact  that  the  learned  and  painstaking  author  had  previously  been 
careful  to  emphasize  the  proposition  that  ''the  term  'right'  and  the 
term  'relative  duty'  signify  the  same  notion  considered  from  different 
aspects."'^  Such  a  delimitation  of  "right"  clearly  excludes  "legal 
privilege";  for  the  correlative  of  the  latter,  or  "the  same  notion" 
from  a  "different  aspect,"  is,  of  course,  "no-right"  or  "no-claim." 

More  or  less  similar  blending  of  legal  concepts  and  terms  in  con- 
nection with  the  subject  of  rights  in  rem  seems  to  find  place  not  only 
in  well-known  works  on  jurisprudence  but  also  in  various  treatises 
or  monographs  on  particular  branches  of  the  law.'-'     Indeed  it  is  not 

'T  Jurisprudence  (5th  ed.,  1885),  Vol.  T,  p.  .?07,  Vol.  TT.  pp.  709.  802.  808. 

-»  Jurisprudence  (5th  ed.,  1885),  Vol.  I,  p.  3!15. 

"9  It  is,  of  course,  possible  for  a  given  writer  to  '  *  impose "  on  a  term  what 
meaning  he  will,  within  the  princijde  of  the  following: 

"  'When  /  use  a  word,'  Tlumpty  Dumpty  said,  in  rather  a  scornful  tone,  'it 
means  just  what  I  choose  it  to  mean,  neither  more  nor  less.' 

"  'The  question  is,'  said  Alice,  'whether  you  can  make  words  mean  so  many 
different  things. ' 

"  'The  question  is,'  said  Humpty  Dumpty.  'whiih  is  to  be  the  master?  That's 
all.'  "     Through  the  Looking  Glass,  Chap.  VI. 


100  FUNDAMENTAL  LEGAL  CONCEPTIONS 

unlikely  that  the  later  writers  have  in  this  respect  but  followed  the 
lead  of  Austin,  as  they  have  in  so  many  other  matters  of  legal  analysis. 
The  following  passages  will  serve  to  show  how  general  is  the  usage 
referred  to,  and,  it  is  believed,  will  also  indicate  how  such  a  usage 
tends  to  hinder  and  obscure  correct  analysis  and  clear  understanding 
of  legal  problems: 

1871,  Mr.  Justice  Markby,  Elements  of  Law: 

' '  Thus  in  the  case  of  a  contract  between  A  and  B,  the  right  of  A  to 
demand  performance  of  the  contract  exists  against  B  only ;  whereas  in 
the  case  of  ownership,  the  right  to  hold  and  enjoy  the  property  exists 
against  persons  generally.  This  distinction  between  rights  is  marked 
by  the  use  of  terms  derived  from  the  Latin :  the  former  are  called 
rights  in  personam;  the  latter  are  called  rights  in  rem."^'^ 

1880,  Professor  Thomas  Erskine  Holland,  Elements  of  Juris- 
prudence: 

' '  A  right  is  available  either  against  a  definite  person  or  persons,  or 
against  all  persons  indefinitely.  A  servant,  for  instance,  has  a  right 
to  his  wages  for  the  work  he  has  done,  available  against  a  definite 
individual,  his  master ;  while  the  owner  of  a  garden  has  a  right  to  its 
exclusive  enjoyment  available  against  no  one  individual  more  than 
another,  but  against  everybody."*^ 

1902,  Mr.  Solicitor-General  Salmond,  Jurisprudence: 

"My  right  to  the  peaceable  occupation  of  my  farm  is  a  real  right, 
for  all  the  world  is  under  a  duty  towards  me  not  to  interfere  with  it. 
...  I  have  a  real  right  to  the  use  and  occupation  of  my  own  house ; 
I  have  a  personal  right  to  receive  accommodation  at  an  inn.  .   .   .  "^^ 

1874,  Mr.  Stephen  Martin  Leake,  Law  of  Property  in  Land: 

"Rights  to  things,  jura  in  rem,  have  for  their  subject  some  material 
thing,  as  land  or  goods,  which  the  o^^^ler  may  use  or  dispose  of  in  any 
manner  he  pleases  within  the  limits  prescribed  by  the  terms  of  his 
right.  A  right  of  this  kind  imports  in  all  persons  generally  the  cor- 
relative negative  duty  of  abstaining  from  any  interference  with  the 
exercise  of  it  by  the  owner;  and  by  enforcing  this  duty  the  law  pro- 
tects and  establishes  the  right.  But  a  right  of  this  kind  does  not 
import  any  positive  duty  in  any  determinate  person,  or  require  any 
act  or  intervention  of  such  person  for  its  exercise  and  enjoyment. '  '^^ 

If,  however,  this  more  or  less  arbitrary  plan  be  pursued,  it  is  at  least  desirable 
that  it  be  done  premeditatedly,  and  that  adequate  notice  be  given.  It  is,  more- 
over, believed  that,  in  the  cases  put  in  the  text,  the  difficulties  involved  are  con- 
cerned primarily  with  concepts  rather  than  terms. 

»^  Elements  of  Law  (6th  ed.,  1905),  p.  98. 

81  Elements  of  Jurisprudence  (10th  ed.,  1906),  p.  139. 

»^  Jurisprudence  (4th  ed.,  1913),  pp.  202,  203. 

S3 /.aw  of  Property  in  Land  (1st  ed.,  1874),  p.  2. 


AS  APPLIED  IX  JUDICIAL  REASONING  101 

1887,  Professor  Jaines  Barr  Ames,  Pt(nhas(  for  Value  icithout 
Notice  : 

"The  most  striking  difference  between  property  in  a  thing  and 
property  in  an  ol)ligation  is  in  tlie  mode  of  enjoyment.  The  owner  of 
a  house  or  a  horse  enjoys  the  fruits  of  ownership  without  the  aid  of 
any  other  person.  The  only  way  in  whieli  the  owner  of  an  obligation 
can  realize  his  ownership  is  by  compelling  its  performance  by  the 
obligor.  Hence,  in  the  one  case,  the  owner  is  said  to  have  a  right  in 
rem,  and,  in  the  other,  a  right  in  personam.'"^* 

1915,  Professor  Harlan  Fiske  Stone,  Law  and  its  Administration: 

''It  will  be  noted  that  the  essential  difference  between  a  right  in  rem 
and  a  right  in  personam  is  that  a  right  in  rem  may  be  enjoyed  by  the 
possessor  of  it  without  the  intervention  or  aid  of  any  other  person, 
whereas  vhe  possessor  of  a  right  in  personam  can  enjoy  his  possession 
or  ownerhip  of  it  only  by  compelling  the  obligor  to  perform  the  obliga- 
tion which  gives  rise  to  the  right.  .    .   . 

"Rights  in  rem  include  generally  all  of  those  rights  commonly 
spoken  of  as  property  rights;  that  is  to  say,  rights  to  possess,  use,  and 
enjoy  things,  which  rights  are  good  and  enforceable  against  all  the 
world.  "«^ 

1916,  Professor  Sanuiel  AYilliston,  Is  the  Right  of  an  Assignee  of  a 
Chose  in  Action  Legal  or  Equitable? 

"Though  legal  ownership  is  conceived  fundamentally  as  a  right 
good  against  all  the  world,  actual  instances  of  such  ownership  are 
often  mach  more  narrowly  limited."^" 

(e)  A  multital  primary  rigid,  or  claim  {right  in  rem),  should, 
regarding  its  character  as  such,  he  carefully  differentiated  from  the 
paiicital  secondary  right,  or  claim  (right  in  personam),  arising  from 
a  violation  of  the  former:  Using  again  the  hypothetical  case  involving 
A  as  owner  of  Blackacre,  it  is  clear  that  if  1:5  commits  a  destructive 
trespass  on  A's  land,  there  arises  at  that  moment  a  new  right,  oi-  claim, 
in  favor  of  A, — i.e.,  a  so-called  secondary  right  that  B  shall  pay  him 
a  suiri  of  money  as  damages;  and  of  course  B  comes  simultaneously 
under  a  correlative  duty.  Similarly  if  ('  commits  a  battery  on  A.  or 
if  D  alienates  the  affections  of  A's  wife:  and  so  on  iiuletinitely.  In 
each  of  these  cases  the  secondary  right — e.g.,  that  against  B — is  a 
paucital  right,  or  claim,  i.e.,  a  right  in  personam.  The  entire  "right — 
duty"  relation  would  be  one  of  the  class  of  relations  in  personam 
designated  in  Roman  law  by  the  term  ohligatio.  ^lore  specitically.  the 
relation  would  be  known  as  an  ohligatio  ex  delicto.  This  is  brought 
out  by  the  language  of  an  eminent  judge  : 

84  (1887)  1  Harvard  Law  Eeview,  1,  9. 

S5  Law  and  lis  Adminisi ration  (191o),  ]>p.  51,  54,  57. 

86  (1916)  30  Ilarvar.l  Law  Review,  07,  98. 


102  FUNDAMENTAL  LEGAL  CONCEPTIONS 

1904,  Mr.  Justice  Holmes,  in  Slater  v.  Mexican  National  R.  R.  Co.: 

''We  assume  for  the  moment  that  it  was  sufficiently  alleged  and 
proved  that  the  killing  of  Slater  was  a  negligent  crime  within  the 
definition  of  Article  11  of  the  Penal  Code,  and,  therefore,  if  the  above 
sections  were  the  only  law  bearing  on  the  matter,  that  they  created  a 
civil  liahility  to  make  reparation  to  any  one  whose  rights  were  in- 
fringed. .   .   . 

' '  The  theory  of  the  foreign  suit  is  that  .  .  .  the  act  complained  of 
.  .  .  gave  rise  to  an  obligation,  an  o6h'gfa^w  .  .  .  "®^ 

This  analysis  seems  applicable  even  in  the  case  of  a  tort  consisting 
of  wrongfully  dispossessing  an  owner  of  a  tangible  movable  object. 
Thus,  if  Y  wrongfully  takes  possession  and  control  of  X  's  horse,  there 
arises  a  duty  iji  Y  to  return  the  animal  to  X;  and,  of  coure,  X  gets 
a  correlative  right.  The  latter  is  a  paucital  right,  or  right  in  personam ; 
for  there  are  no  fundamentally  similar  rights  against  persons  in 
general.  This  is  true  even  though,  of  course,  X's  rights  against 
others  that  they  shall  not  convert  or  harm  the  horse  while  in  Y's 
possession  are  rights  in  rem.    The  following  passage  is  apposite  : 

1900,  Mr.  Chief  Justice  Holmes,  in  Tyler  v.  Court  of  Registration: 

"But  it  is  said  that  this  is  not  a  proceeding  in  rem.  It  is  certain 
that  no  phrase  has  been  more  misused.  In  the  past  it  has  had  little 
more  significance  than  that  the  right  alleged  to  have  heen  violated  was 
a  right  in  rem.  Austin  thinks  it  necessary  to  quote  Leibnitz  for  the 
sufficiently  obvious  remark  that  every  right  to  restitution  is  a  right  in 
personam. "^^ 

That  this  distinction  is  not  always  carefully  observed  may  be  seen 
from  a  consideration  of  the  quotations  next  to  be  presented. 

(f)  A  multital  primary  right,  or  claim  {right  in  rem),  should  not, 
regarding  its  character  as  such,  he  confused  ivith,  or  thought  depend- 
ent on,  the  cliaracter  of  the  proceedings  hy  which  it  (and  the  second- 
ary right  arising  from  its  violation)  may  he  vindicated:  Owing  to 
limitations  of  space  this  matter  cannot  be  given  here  all  the  attention 
that  it  deserves;  and  the  more  complete  discussion  must  be  reserved 
for  another  place.  Some  of  the  more  important  points  should,  how- 
ever, be  noticed  in  the  present  context. 

At  least  two  tendencies  are  occasionally  to  be  observed  by  way  of 
confusing  the  nature  of  primary  rights  (as  in  personam  or  in  rem) 
with  the  character  of  the  proceedings  by  which  they  may  be  vindicated. 
Both  of  these  tendencies  are  believed  to  be  founded  on  seriously  erro- 
neous notions  that  ought,  if  possible,  to  be  dissipated.  Each  of  them 
will,  therefore,  be  briefly  discussed. 

First,  it  is  sometimes  supposed  that  to  have  a  right  in  rem  concem- 

87  (1904)  194  U.  S.,  120,  125.  88  (1900)  175  Mass.,  71,  76. 


AS  APPLIED  IX  JUDICIAL  REASONING  103 

ing  a  tangible  olgect  of  wliicii  tlu-  owiut  has  l)een  wrongfully  dis- 
possessed means  that  he  may  recover  possession  of  the  object  itself, 
by  self-help  or  action,  from  the  first  wrongdoer  or  any  subsequent 
party  holding  possession  as  vendee  or  bailee  of  the  first  wrongdoer,  or 
as  wrongful  taker  from  the  latter.    Thus : 

1890,  Professor  James  Barr  Ames,  Disseisin  of  Chattels: 

"Trespass,  however,  M-as  a  purely  personal  action;  it  sounded  only 
in  damages.  The  wrongful  taking  of  chattels  was,  therefore,  a  more 
effectual  disseisin  than  the  ouster  from  land.  The  dispossessed  owner 
of  land,  as  we  have  seen,  could  always  recover  possession  by  an  action. 
Though  deprived  of  the  ns,  h<  still  had  a  right  //(  ron.  The  disseisor 
acquired  only  a  defeasible  estate.  One  whose  chattel  had  been  taken 
from  him,  on  the  other  hand,  having  no  means  of  recovering  it  by 
action,  not  only  lost  the  res,  but  had  no  right  in  rem.  The  disseisor 
gained  by  his  tort  both  the  possession  and  the  right  of  possession ;  in 
a  word,  the  absolute  property  in  the  chattel  taken.  .  ,   . 

"Today,  as  everyone  knows,  neither  a  trespasser,  nor  one  taking  or 
buying  from  him.  nor  the  vendee  of  a  bailee,  either  with  or  without 
delivery  by  the  latter,  acquires  the  absolute  property  in  the  chattel 
taken  or  bailed.  The  disseisee  of  goods,  as  well  as  the  disseisee  of 
land,  has  a  right  //(  rem.  The  process  by  which  the  riefJit  in  personam 
has  been  transformeel  into  a  real  right  may  be  traced  in  the  expansion 
of  the  writs  of  replevin  and  detinue,  and  is  sufficiently  curious  to 
warrant  a  slight  digression.  .   .   . 

"The  disseisee's  right  in  rem,  however,  was  still  a  qualifieel  right; 
for  replevin  was  never  allowed  in  England  against  a  vendee  or  bailee 
of  a  trespasser,  nor  against  a  second  trespasser.  It  was  only  by  the 
later  extension  of  the  action  of  detinue  that  a  disseisee  finally  acquired 
a  perfect  right  in  rem.  Detinue,  although  its  object  was  the  recovery 
of  a  specific  chattel,  was  originally  an  action  e.r  contractu.  It  was 
allowed  only  against  a  bailee  or  against  a  vendor,  who  after  the  sale 
and  before  delivery  Avas  in  much  the  same  position  as  a  bailee.  .    .    . 

' '  So  long  as  the  adverse  possession  continues,  the  dispossessed  owner 
of  the  chattel  has,  manifestly,  no  power  of  present  enjoyment.  Ha.<5 
he  lost  also  the  power  of  alienation?  His  right  in  rem,  if  analyzed, 
means  a  right  to  recover  possession  by  recaption  or  action. "^^ 

As  indicated  by  the  passages  quoted.  Professor  Ames  seems  to  have 
thought  that  for  the  owner,  after  dispossession,  to  have  rights  in  rem 
would  require  the  remedy  of  specific  recovery  of  the  tangible  object. 
This,  however,  seems  to  involve  a  blending  or  confusing  of  substantive 
relations  and  adjective  relations.  If  A,  the  owner  of  a  tangible  mov- 
able object,  is  dispossessed  by  B,  A,  under  modern  authorities,  has 
rights  against  all  persons  that  the  object  should  not  be  harmed  or 
"converted";  and  these  rights  could  be  vindicated  by  an  action  on 
the  case  or  by  an  action  of  trover,  as  the  facts  might  demand.     It  is 

89  (1890)  3  Harvard  Law  Review,  25.  28,  29,  30.  3],  33,  34,  337. 


104  FUNDAMENTAL  LEGAL  CONCEPTIONS 

clear,  moreover,  that  such  rights  would  exist,  as  multital  rights,  or 
rights  in  rem,  even  though  no  possessory  remedy  were  open  to  A. 

If  we  may  judge  by  the  passages  quoted  above,  it  seems  not  unlikely 
that  Professor  Ames,  because  of  assuming  that  a  right  in  rem  con- 
cerning physical  objects  involves  necessarily,  in  case  of  dispossession, 
the  remedy  of  recovery  of  possession,  would  apparently  have  asserted 
that  in  the  early  days  even  a  chattel  owner  in  actual  possession  did 
not  have  "a  right  in  rem" f'^  and  it  is  clear,  in  any  event,  that  the 
possibility  of  regaining  possession  by  action  or  self-help  is  frequently 
assumed  to  be  of  the  essence  of  "a  right  in  rem." 

This,  however,  seems  a  very  inadequate  and  inexact  view.  Even  in 
the  days  when  wrongful  dispossession  operated  virtually  to  divest  the 
legal  interest  of  the  chattel  owner,  it  was  still  true  that  prior  to  any 
such  dispossessing  of  the  physical  object  and  concomitant  divesting 
of  the  legal  interest  he  had  rights  in  rem  against  persons  in  general 
that  they  should  not  harm  the  object  or  take  the  object  from  the 
owTier;  and  these  respective  multital  rights,  or  rights  in  rem,  could, 
as  Professor  Ames  himself  points  out,  be  vindicated  by  trespass  or 
other  action  brought  to  secure  damages.  ^°^  In  other  words,  the  chattel 
owner's  rights,  so  long  as  he  had  them,  were  rights  in  rem,  even  though 
in  the  early  period  now  referred  to  (middle  of  the  thirteenth  century) 
he  was  subject  to  the  liabilities  of  their  being  virtually  divested  by  a 
wrongful  taking, — there  being,  correlatively,  a  power  in  the  wrong- 
doer thus  to  divest  the  interest  of  the  chattel  o\^Tier.^°'' 

Fundamentally  similar  legal  powers  and  correlative  liabilities  in- 
volving the  divesting  of  " legal "^^  and  "equitable"  rights  in  rem  (and 
other  jural  relations  belonging  to  the  particular  aggregates  involved) 

90  Compare  Ames,  Disseisin  of  Chattels,  (1890)  3  Harvard  Law  Eeview,  314, 
passim;  consider  especially  the  statement:  "A  true  property  may,  therefore,  be 
shortly  defined  as  possession  coupled  with  the  ■unlimited  right  of  possession." 

This  definition  would  seem  to  involve  a  serious  confusion  of  physical  relations 
with  legal  relations. 

Compare  also  Ames,  Lectures  on  Legal  History  (1913),  p.  76,  passage  quoted 
post,  p.  107. 

90a  See  Ames,  Lectures  on  Legal  History  (1913),  pp.  60,  n.  1,  178  ff. 

For  judicial  consideration  of  the  early  history  of  the  action  of  trespass,  see 
Admiralty  Commissioners  v.  S.  S.  Amerika  [1917],  A.  C,  38. 

90b  [Compare  Cook,  Powers  of  Courts  of  Equity,  (1915)  15  Columbia  Law  Ee- 
view, 37,  45. — Ed.] 

91  All  legal  rights,  if  genuine  and  valid,  are  really  "concurrently  legal  and 
equitable,"  if  considered  with  respect  to  the  sanctions  involved.  See  The  dela- 
tions between  Equity  and  Law,  (1913)  11  Michigan  Law  Eeview,  537,  reprinted 
infra;  also  Professor  Walter  Wheeler  Cook,  The  Alienability  of  Choses  in  Action — 
A  Beply  to  Professor  Williston,  (1917)  30  Harvard  Law  Eeview,  449,  455. 


AS  APPLIP:D  IX  judicial  reasoning  105 

have  existed  from  the  earliest  times.  Such  powers  are  created  I)y  the 
law  on  various  grounds  of  policy  and  convL-nience, — the  teleology 
"underlying  each  particular  instance  not  being  difficult  to  discover. 
In  this  place  a  hare  enumeration  of  some  of  such  powers  must  suffice : 
1.  The  power  of  sale  in  market  overt  to  a  bona  fide  purchaser ;  2.  The 
power  of  even  a  thief  having  possession  of  money  but  not,  of  course, 
the  "ownership"  thereof,  to  create  a  good  title  in  a  bona  fide  "pur- 
chaser,""-— the  whole  country  being  in  this  ca.se,  so  to  say,  "market 
overt"  because  of  the  necessity  of  free  circulation  of  money,  and  it 
being  too  inconvenient  for  the  transferor  to  produce  or  the  transferee 
to  examine  an  "abstract  of  title" ;  3.  The  power  or  powers  of  a  grantor 
and  second  grantee  of  I'calty,  under  the  recording  acts,  to  extinguish 
the  interest  of  the  first  grantee  by  a  conveyance  to  the  second  grantee 
as  an  innocent  purchaser  and  the  prior  recording  of  the  latter 's 
deed  f^  4.  The  statutory  power  of  a  factor,  in  certain  cases,  to  create 
a  good  title  in  an  innocent  purchaser;  5.  The  power  of  a  duly  appointed 
agent,  in  certain  cases,  to  sell  chattels  to  an  innocent  purchaser,  even 
after  his  factual  authorization  to  sell  has  ])een  revoked  by  the  principal ; 
6.  The  power  of  a  trustee  to  convey  an  unincumbered  ' '  legal  title ' '  to 
a  ho7ia  fide  purchaser  for  value  without  notice, — the  equitable  rights, 
privileges,  etc.,  of  the  cestui  rjue  trust  being  thereby  extinguished. 

The  foregoing  and  others  that  might  be  mentioned  are  cases  depend- 
ing on  the  public  policy  of  securing  freedom  of  alienation  and  circula- 
tion of  property  in  the  business  world.  There  may  now  be  mentioned 
certain  other  cases  dependent  on  somewhat  different  teleological  con- 
siderations: 1.  The  power  of  an  ordinary  agent  (while  his  factual 
authorization  continues)  to  divest  the  rights  in  rem,  etc.,  of  his  prin- 
cipal and  create  new  and  corresponding  rights,  etc.,  in  the  agent's  trans- 
feree ;  2.  The  power  of  a  donee  of  a  power  of  appointment  to  extinguish 
the  rights  in  rem,  etc.,  of  the  owner  of  a  vested  interest  and  to  create 
new  and  corresponding  rights,  etc.,  in  the  transferee ;  3.  The  power  of 
the  appropriate  officer  or  officers  to  alienate  property  effectually  in 


92  Compare  Viscount  Haldane,  L.  C,  in  Sinclair  v.  Brougham  ['  .  .  C., 
398,  418,  419,  quoted  ante,  p.  84. 

93  Compare  Lord  Justice  Cozens-Hardy  in  Capital  S-  Countir.i  Bank,  Ltd.  v. 
Bhodes  [1903],  1  Ch.,  631,  6-5.5-6.56: 

"The  transfer  by  registered  disposition  takes  effect  hy  virtue  of  an  overriding 
power,  and  not  by  virtue  of  any  estate  in  the  registered  proprietor.  .  .  .  Notwith- 
standing that  the  land  has  Ijeionie  registered  land  it  may  still  be  dealt  with  by 
-deeds  having  the  same  operation  and  effect  as  they  would  have  if  the  land  were 
unregistered,  subject  only  to  the  risk  of  the  title  being  defeated  .  .  .  by  the  exer- 
cise of  the  statutory  powers  of  diapo.fition  given  to  the  registered  proprietor, 
against  which  the  mortgagee  must  protect  himself  by  notice  ou  the  register." 


]06  FUNDAMENTAL  LEGAL  CONCEPTIONS 

eminent  domain  proceedings;  4.  The  power  of  a  sheriff  duly  em- 
powered by  writ  of  execution  to  divest  the  rights  in  rem,  etc.,  of  the 
present  owner  of  property  and  to  vest  new  and  corresponding  rights, 
etc.,  in  another;  5.  The  power  of  a  court,  in  a  statutory  proceeding  to 
quiet  title,  to  extinguish  the  rights  in  rem,  etc.,  of  the  present  owner 
and  to  give  new  and  corresponding  rights,  etc.,  to  the  plaintiff;  6. 
Various  other  powers  of  courts  involving  the  "shifting"  of  title  from 
one  person  to  another. 

In  all  these  cases  it  is  clear  that  the  present  owner  has  rights  in  rem, 
etc.,  in  spite  of  his  liabilities  that  they  may  be  divested  through  the 
exercise  of  the  various  powers  indicated. 

Second,  we  must  now  consider  a  second  form  of  the  same  general 
tendency  to  assume  some  rigid  interdependence  between  the  nature 
of  a  right  in  rem  as  such  and  the  character  of  the  proceedings  avail- 
able for  its  vindication.  This  erroneous  assumption  has  most  often 
been  made  in  discussions  of  the  question  whether  there  are  any  in- 
stances of  equitable  rights  in  rem  (multital  rights),  or,  indeed, 
whether  there  could,  in  the  very  nature  of  things,  be  any  instances  of 
equitable  rights  in  rem.    Thus : 

1877,  Professor  C.  C.  Langdell,  Summary  of  Equity  Pleading: 

"The  reason  why  all  equitable  rights  to  property  are  lost  the  mo- 
ment the  legal  ownership  is  transferred  for  value  to  a  person  who  has 
no  notice  that  it  is  subject  to  any  equitable  rights,  will  be  found  in  the 
fundamental  nature  of  equitahle  jurisdiction,  as  explained  in  previous 
paragraphs.  It  is  only  by  a  figure  of  speech  that  a  person  who  has 
not  the  legal  title  to  property  can  be  said  to  be  the  equitable  owner  of 
it.  What  is  called  equitable  ownership  or  equitable  title  or  an  equi- 
table estate  is  in  truth  only  a  personal  claim  against  the  real  owner; 
for  equity  has  no  jurisdiction  in  rem,  and  cannot,  therefore,  confer  a 
true  ownership,  except  by  its  power  over  the  person  with  whom  the 
ownership  resides,  i.e.,  by  compelling  him  to  convey."^* 

1900,  Professor  C.  C.  Langdell,  Classification  of  Bights  and  Wrongs: 

"Can  equity  then  create  such  rights  as  it  finds  to  be  necessary  for 
the  purposes  of  justice  ?  As  equity  wields  only  physical  power,  it  seems 
to  be  impossible  that  it  should  actually  create  anything.  It  seems, 
moreover,  to  be  impossible  that  there  should  be  any  other  actual  rights 
than  such  as  are  created  by  the  State,  i.e.,  legal  rights.  So,  too,  if 
equity  could  create  actual  rights,  the  existence  of  rights  so  created 
would  have  to  be  recognized  by  every  court  of  justice  within  the 
State;  and  yet  no  other  court  than  a  court  of  equity  will  admit  the 
existence  of  any  right  created  by  equity.  It  seems,  therefore,  that 
equitable  rights  exist  only  in  contemplation  of  equity,  i.e.,  that  they 
are  a  fiction  invented  by  equity  for  the  promotion  of  justice.     Still, 

^'i  Summary  of  'Equity  Pleading  (2d  ed.,  1883),  see.  184. 


AS  APPLIED  IX  JUDICIAL  REASONING  107 

as  in  contemplation  of  eiiuity  such  rights  do  exist,  equity  must  reason 
upon  them  and  deal  with  them  as  if  they  had  an  actual  existence. ' ""* 

Circa  1886,  Professor  James  Barr  Ames,  Lectures  on  Legal  Ilistory: 

"A  trust,  as  every  one  knows,  has  been  enforceable  for  centuries 
against  any  holder  of  the  title  except  a  purchaser  for  value  without 
notice.  But  this  exception  shows  that  the  cestui  que  trust,  unlike  the 
bailor,  has  not  acquired  a  right  in  rcm.^^^  This  distinction  is,  of 
course,  due  to  the  fundamental  difference  between  common-law  and 
equity  procedure.  The  common  law  acts  in  rem.  The  judgment  in 
detinue  is,  accordingly,  that  the  plaintiff  recover  the  chattel,  or  its 
value. ''"'^  Conceivably  the  coiumon-law  judges  might  have  refused  to 
allow  the  bailor  to  recover  in  detinue  against  a  bona  fide  purchaser,  as 
they  did  refuse  it  against  a  purchaser  in  market  overt.  But  this  would 
have  involved  a  weighing  of  ethical  considerations  altogether  foreign 
to  the  medieval  mode  of  thought.  Practically  there  was  no  middle 
ground  between  restricting  the  bailor  to  an  action  against  his  bailee, 
and  giving  him  a  right  against  any  pos,sessor.  Equity,  on  the  other 
hand,  acts  only  in  personam,  never  decreeing  that  a  plaintiff  recover 
a  res,  but  that  the  defendant  surrender  what  in  justice  he  cannot 
keep."»« 

1904,  Professor  Frederic  William  Maitland,  Trust  and  Corporation: 

"I  think  it  is  better  and  safer  to  say  with  a  great  American  teacher 
that  'Equity  could  not  create  rights  in  rem  if  it  would,  and  would 
not  if  it  could. '    See  Langdell,  Harvard  Law  Review,  Vol.  I,  p.  60. ' '"' 

It  is  dififieult  to  find  solid  foundation  for  such  assumptions  as  the 
foregoing,  or  to  understand  how  the  notions  connected  therewith  could 

93  (1900)  13  Harvard  Law  Review,  673,  677.  For  analysis  and  criticism  of  the 
views  of  Professors  Langdell,  Ames,  and  Maitland  as  regards  the  relations  of 
substantive  equitable  doctrines  to  substantive  legal  doctrines,  see  the  writer's 
article,  The  Belations  between  Equity  and  Late,  (1913)  11  Michigan  Law  Review, 
537,  infra. 

See  also  Supplemental  Note  on  The  Conflict  of  Equif;i  and  Low,  infra. 

93a  For  criticism  of  this  assumption,  see  ante,  n.  22. 

93b  But  see  Holmes,  J.,  in  Tyler  v.  Court  of  Registration  (1900),  175  Mass.,  71, 
76,  quoted  post,  n.  99. 

^^  Lectures  on  Legal  Hvitory  (1913),  p.  76.  Compare  Professor  Harlan  F. 
Stone,  Law  and  Its  Administration  (1915),  pp.  93,  95:  "Since  a  judgment  at 
law  affects  only  the  property  of  the  parties  to  the  litigation,  it  is  sometimes  spoken 
of  as  a  judgment  in  rem.  The  weakness,  as  well  as  the  strength  of  such  a  system 
of  procedure  is  apparent.  To  avail  one's  self  of  a  legal  remedy,  one  must  wait  until 
his  rights  have  been  interfered  with  and  he  has  suffered  some  legal  damage.  .  .  . 

"The  distinguishing  feature  of  equity  is  that  the  chancellor,  or  equity  judge, 
who,  because  of  his  official  position,  originally  had  delegated  to  him  the  royal  pre- 
rogative of  command,  has  power  to  command  things  to  be  done  or  not  to  be  done. 
That  is,  the  equity  courts  act  in  personam,  as  it  is  said,  or  against  the  person,  a.t 
distinguished  from  the  law  courts  whose  jurisdiction  is  in  rem  or  over  the  property 
of  the  litigants.    Thus,  the  chancellor  could  enjoin  the  defendant  from  committing 


108  FUNDAMENTAL  LEGAL  CONCEPTIONS 

have  received  siieh  a  large  following.  Are  we  forced  to  recognize  that 
mere  words — especially  if  they  are  Latin  words — have  such  a  sur- 
prisingly potent  tendency  to  control  thought  ? 

Suppose,  once  again,  that  A  is  owner  of  Blackacre,  and  that  B  drives 
his  automobile  over  A's  lawn  and  shrubbery.  A's  primary  right  in 
rem  is  thereby  violated,  and  a  secondary  right  in  personam  arises  in 
favor  of  A  and  against  B, — an  "ohligatio,"  to  use  the  terra  of  Mr. 
Justice  Holmes.®*  A  may  sue  B  at  law  for  damages  and  get,  as  a 
result  of  the  'primary  stage"  of  the  proceeding,  an  ordinary  legal 
judgment  in  personam  for  (say)  $500.  Such  judgment  would 
' '  merge ' '  or  extinguish  A 's  secondary  right  in  personam  together  with 
B's  secondary  duty,  and  would  create  a  (new)  judgment  obligation — 
right  in  personam  and  correlative  duty — for  the  payment  of  $500. 
Such  judgment  would  be  binding  even  though  the  judgment  debtor, 
B,  had  no  assets  whatever.®^  Thus,  if  B's  judgment  duty  is  not  per- 
formed or  discharged,  a  new  action  can,  in  most  jurisdictions,  be 
based  thereon ;  though  in  some  of  the  latter  costs  are  denied  to  the 
plaintiff  if  the  new  action  be  brought  without  special  reasons.^°° 

But  of  course  A  is  not  likely  to  wish  merely  an  indefinite  series  of 
judgment  obligations.  If,  therefore,  B  has  property  either  at  the  time 
judgment  is  rendered  or  at  some  later  time,  a  "secondary  stage ""^ 
of  the  proceedings,  beginning  with  a  writ  of  execution,  may  be  had. 
That  is,  the  sheriff,  under  such  a  writ,  has  the  power  and  duty  of 
selling  sufficient  property  of  B  and  applying  the  proceeds  to  the 
satisfaction  of  the  judgment.  If  the  total  proceedings  culminate  in 
this  way,  and  only  if  they  do  so  culminate,  can  we  say  that  there  has 

a  threatened  injury  to  the  plaintiff's  property,  or  make  a  decree  directing  the 
defendant  to  convey  property  to  the  plaintiff  in  accordance  with  his  contract.  If 
the  defendant  failed  to  obey,  he  could  be  punished  for  contempt  by  imprisonment 
until  he  becfime  obedient  to  the  court. ' ' 

97  Collected  Papers  (1011),  Vol.  Ill,  p.  350,  n.  1. 

98  See  a7ite,  p.  102. 

99  See  Mr.  Justice  Holmes,  in  Tjiler  v.  Court  of  Begistraiion  (1900),  175  Mass., 
71,  76: 

"If  the  technical  object  of  the  suit  is  to  establish  a  claim  against  some  particu- 
lar person,  with  a  judgment  which  generally,  in  theory  at  least,  binds  his 
body  .  .  .  the  action  is  in  personam,  although  it  may  concern  the  right  to  or 
possession  of  a  tangible  thing." 

See  also  a  later  passage  in  the  learned  judge's  opinion  (p.  77),  referring  to  a 
judgment  in  personam  as  one  establishing  "an  infinite  personal  liability." 

100  See  Freeman,  Judgments  (4th  ed.,  1898),  sees.  432  ff. 

101  As  regards  "the  primary  stage"  and  "the  secondary  stage"  of  an  action 
at  law  or  suit  in  equity,  compare  Lord  Hardwicke,  in  Penn  v.  Lord  Baltimore 
(1750),  1  Ves.,  444,  454,  quoted  ante,  p.  69,  n.  11. 


AS  APPLIED  IN  JUDICIAL  REASONING  109 

iDeen  a  proceeding  in  rem,^^-  or,  more  specifically,  quasi  in  rcm.^^'^ 
That  is  to  say,  according  to  Ihe  meaniiifi^s  of  the  phrases  2'/?  personam 
and  in  rem  in  this  particular  context,  the  proceedings  from  the 
beginning  of  the  action  down  to  and  including  the  execution  sale  have 
a  twofold  aspect  and  eflPeet :  (1)  the  primary  stage  of  the  entire  pro- 
ceedings, i.e.,  down  to  judgment,  is,  considered  by  itself,  a  proceeding 
in  personam;  (2)  the  primary  stage  and  the  secondary  stage  (from 
and  after  judgment)  are,  considered  together,  a  proceeding  ejtiasi  in 
rem  with  reference  to  the  particular  property  sold  in  the  execution 
sale. 

Instead  of  suing  R  for  damages  and  receiving  a  judgment  in  per- 
sonam, as  above  described,  A  might  in  some  jurisdictions,  in  case  B 
be  absent  from  the  jurisdiction,  attach  a  definite  piece  of  B's  property ; 
and  ultimately  this  might  be  sold  to  satisfy  A's  claim  for  damages. 
In  this  case  the  entire  proceeding,  since  its  only  efTeet  is  to  extinguish 
B's  ownership  of  the  very  property  attached   (if  any  he  hadj   and 

102  Even  though  such  execution  sale  take  place  as  a  result  of,  and  subsequent  to, 
a  judgment  for  money,  neither  the  action  brought  to  secure  such  a  judgment  nor 
the  judgment  itself,  is  said  to  be  in  rem.  {Cf.,  however.  Professor  Ames,  ante,  p. 
107,  and  Professor  Stone,  ante,  n.  96.)  On  the  contrary,  both  the  action  and  the 
judgment  are  said  to  be  in  personam.  See  Mr.  Justice  Holmes,  in  Tijlcr  v.  Court 
of  Registration  (1900),  175  Mass.,  71,  76,  quoted  ante,  n.  99. 

See  also  Mr.  Justice  Cutting,  in  Bedington  v.  Fnje  (1857),  43  Me.,  578,  586: 
' '  And  the  embarrassment  has  arisen  in  a  great  measure  by  an  erroneous  idea 
that  the  remedy  of  the  contractor  and  his  sub-contractor  is  the  same;  whereas  the 
former  has  his  security  on  the  goods  and  estate  of  his  debtor,  that  is,  in  personam, 
as  well  as  on  the  specific  property  benefited  by  his  labor,  which  may  be  in  rem, 
and  after  judgment  it  is  optional  with  the  creditor  on  which  species  of  property  he 
will  levy  his  execution.  .  .  .  But  a  sub-contractor  has  no  claim  against  the  o^^■ner 
of  the  property — his  claim  is  only  against  the  property  (t;i  rem),  and  the  person 
and  property  of  his  employer  (in  personam)." 

It  is  believed,  however,  that  it  tends  greatly  to  clarify  matters  to  distinguish 
sharply,  as  already  indicated,  the  two  stages  of  the  judicial  proceedings;  for  the 
two  taken  together  operate,  as  regards  such  property  as  is  sold  on  execution,  just 
as  if  such  property  had  been  attached  ab  initio  and  subsequently  sold,  with  no 
intermediate  judgment  in  personam  at  all.  Such  an  attachment  proceeding  would, 
of  course,  be  called  a  proceeding  in  rem,  or,  more  specifically,  quasi  in  rem. 

103  Compare  Mr.  Justice  Franklin,  in  Hook  v.  IToffman  (1915),  16  Ariz..  540, 
557: 

"While,  properly  speaking,  actions  or  proceedings  in  rem  are  against  the  thing 
itself,  and  for  the  purpose  of  disposing  thereof  without  reference  to  the  title  of 
particular  claimants,  the  term  has  in  a  larger  and  broader  sense  been  applied  to 
certain  actions  and  proceedings  between  parties,  where  the  object  is  to  reach  and 
dispose  of  property  owned  by  them  or  in  which  they  have  an  interest ;  but,  as 
these  are  not  strictly  in  rem,  they  have  frequently  and  more  properly  been  termed 
quasi  in  rem,  or  in  the  nature  of  actions  or  proceedings  in  rem.' ' 

It  is,  of  course,  inaccurate  to  describe  the  proceeding  strictly   i?i   rrm   as  one 


110  FUNDAMENTAL  LEGAL  CONCEPTIONS 

create  new  and  corresponding  ownership  in  the  execution  purchaser, 
is  a  proceeding  quasi  in  rem. 

It  will  thus  be  seen  that,  even  in  the  law  courts,  the  vindication  of 
primary  rights  in  rem  may,  according  to  the  circumstances,  be  by 
proceedings  in  personam,  or  by  proceedings  quasi  in  rem,  or  by  both 
forms  of  proceeding  (primary  and  secondary  stages  of  the  ordinary 
action  at  law).^°*  It  is  equally  obvious  that  a  primary  right  in  per- 
sonam, e.g.,  A's  right  that  B  pay  him  $10,000,  may  frequently  be 
vindicated  only  by  an  attachment  proceeding, — i.e.,  one  quasi  in  rem. 

The  point  that  the  primary  rights  may  be  in  rem,  although  the 
vindication  proceedings  are  in  personam  in  the  special  sense  that  such 
phrase  has  in  the  present  context,  is  often  brought  out  in  admiralty 
cases.    Thus : 

1907,  Mr.  Justice  Holmes,  in  The  Hamilton: 

"We  pass  to  the  other  branch  of  the  first  question  :  whether  the  state 
law,  being  valid,  will  be  applied  in  the  admiralty.     Being  valid,  it 

which  is  "against  the  thing  itself."  See  Mr.  Justice  Holmes,  in  Tyler  v.  Court 
of  Registration  (1900),  175  Mass.,  71,  77: 

' '  Personification  and  naming  the  res  as  defendant  are  mere  symbols,  not  the 
essential  matter.  They  are  fictions,  conveniently  expressing  the  nature  of  the 
process  and  the  result,  nothing  more. ' ' 

It  is  submitted,  moreover,  that  the  distinction  between  a  proceeding  strictly 
in  rem,  and  one  quasi  in  rem  is  not  correctly  or  adequately  described  by  saying  that 
the  former  is  against  all  the  world  and  the  latter  against  only  a  particular  person. 
When,  e.g.,  a  vessel  is  sold,  in  an  admiralty  proceeding  strictly  in  rem,  the  effect 
is  to  extinguish  the  ownership  (i.e.,  aggregate  of  rights,  etc.)  of  the  owner  and  to 
vest  a  new  and  corresponding  ownership  in  the  purchaser.  So  also,  when  a  horse 
supposedly  belonging  to  B,  a  judgment  debtor,  is  sold  by  the  sheriff  under  a  writ 
of  execution,  a  precisely  similar  result  occurs,  -provided  that  B,  the  particular 
judgment  debtor  named,  actually  does  oivn  the  horse.  The  proceeding  strictly  in 
rem  is  sure  to  "hit  the  right  target";  whereas  the  proceeding  quasi  in  rem  is  not 
certain  to  do  so. 

The  former,  indeed,  can  be  correctly  and  adequately  understood  only  if  it  be 
realized  that  it  is  essentially  an  anonymous  proceeding,  being  aimed  to  reach  the 
interest  of  the  true  owner  (or  owners)  of  the  property  whoever  he  may  be.  The 
proceeding  quasi  in  rem  is,  on  the  other  hand,  aimed  to  reach  only  the  interest  of  a 
named  party.  The  effect,  therefore,  so  far  as  transfer  of  ownership  is  concerned, 
is  necessarily  conditional  upon  some  legal  interest  being  actually  vested  in  the 
particular  party  named. 

If  effective,  however,  the  ordinary  proceeding  quasi  in  rem,  like  that  strictly  in 
rem,  affects  the  jural  relations  of  all  persons,  not  merely  those  of  the  present 
owner;  for  in  each  case  the  "transfer  of  title"  involves,  as  regards  all  persons,  the 
extinguishment  of  their  duties  to  the  present  owner  in  respect  to  the  particular 
object  involved  and  the  creation  of  new  and  corresponding  duties  to  the  new 
owner. 

10*  Of  course,  even  where  a  judgment  in  personam  is  sought,  property  may  be 
attached  ab  initio  and  subsequently  sold  to  satisfy  the  judgment. 


AS  ArPLIED  IN  JL'DK'IAL  REASONING  111 

created  an  ohligatio,  a  personal  liability  of  the  owiu-r  o\'  the  ITaniilton, 
to  the  claimants.  Slat<r  v.  Mrxiian  Xatioiuil  li.  R.  Co.,  194  U.  S., 
120,  126.  This,  of  course,  the  admiralty  wouhl  not  disregard,  but  would 
respect  the  right  when  brought  before  it  in  any  legitimate  way.  Ex 
parte  McNeil,  13  Wall.,  236,  243.  It  might  not  give  a  proceeding  in 
rem,  since  the  statute  does  not  purport  to  create  a  lien.  It  might  give 
a  proceeding  in  pcrsonam."^^^ 

Let  us  now  suppose,  in  the  Blackacre  case,  that  instead  of  suing  at 
law  (after  B  has  committed  a  destructive  trespa.ss),  A  secures  from 
an  equity  court,  ah  initio,  an  injunction  against  B.  The  decree  of  the 
court  here  (end  of  ''primary'  stage"  of  the  equitable  proceeding) 
would  result  in  imposing  a  (new)  duty  on  B  not  to  trespass  on  Black- 
acre;  and,  correlatively,  A  would  have  a  (new)  equitable  right. ^"^ 
This  first  stage  of  the  equitable  proceeding  would  be  in  personam  in 
the  same  general  sense  that  the  primary  stage  of  the  law  court's  is  in 
personam.  If  B  fails  to  fulfil  the  negative  duty  imposed  by  the  in- 
junction, there  will  ordinarily  occur  a  "secondary  stage,"  resulting 
in  imprisonment  for  contempt.  So  far  as  this  is  said  to  be  "enforce- 
ment" or  procedure  in  personam,  it  involves  a  different  and  more 
literal  use  of  the  phrase  in  personam  than  in  any  of  the  instances 
previously  considered. ^•'^  But  the  point  for  special  emphasis  here  is 
that  A's  primary  rights  in  rem  are  now  being  vindicated  exclusively 
by  equitable  proceedings  that  are  in  personam  in  one  sense  so  far  as 
the  primary  stage  is  concerned  and  in  personam  in  a  different  sense 
so  far  as  the  secondary  stage  is  concerned. 

On  what  posible  ground,  therefore,  even  assuming  that  equity  could 
"act  only  in  personam,' ''^'^^  could  it  be  said  that  for  that  reason  there 

105  (1907)  207  U.  S.,  398,  405. 

108  Compare  Fall  v.  Eastin  (1909),  215  U.  S.,  1,  14-15  (concurring  opinion  of 
Holmes,  J.);  MaUette  v.  Carpenter  (1916),  160  N.  W.  (Wis.),  182;  see  extended 
comment  in  (1917)  26  Yale  Law  Journal,  311. 

See  also  The  Relations  between  Equity  and  Law,  (1913)  11  Michigan  Law 
Eeview,  537,  567-568,  reprinted  infra. 

107  For  a  summary  of  the  different  uses  of  the  pair  of  phrases,  in  personam  and 
in  rem,  see  ante,  pp.  69-70. 

For  a  comparison  of  imprisonment  in  an  action  at  law,  under  a  capias  ad  respon- 
dendum or  capias  ad  satisfaciendum,  with  imprisonment  for  contempt  in  a  chancery 
suit,  for  the  purpose  of  coercing  performance  of  a  decree,  see  the  thorough  dis- 
cussion by  Professor  Walter  Wheeler  Cook,  The  Powers  of  Courts  of  Equity,  (1915) 
15  Columbia  Law  Eeview,  108  ff. 

See  also  The  JRclations  between  Equity  and  Law,  (1913)  11  Michigan  Law 
Review,  537,  564-567,  infra. 

108  Such  an  assumption  itself  seems  to  be  inaccurate  and  misleading  in  view  of 
the  power  of  a  court  of  equity  to  issue  writs  of  assistance  and  writs  of  sequestra- 
tion.    See  Lord  Hardwicke,  in  Penn  v.  Lord  Baltimore  (1750),  1  Ves.,  444,  454, 


112  FUNDAMENTAL  LEGAL  CONCEPTIONS 

could  be  no  equitable  primary  rights  in  rem,  i.e.,  multital  rights?  If 
the  usual  legal  proceedings  were  abolished,  and  A  could  vindicate  his 
Blackacre  rights  in  rem  only  in  equity,  would  they  thereby  cease  to 
be  rights  in  rem  and  become  only  rights  i%  personam  f 

Suppose,  indeed,  that  we  have  a  devise  of  Whiteacre  to  X  for  life, 
with  remainder  in  fee  to  Y  if,  and  only  if,  Y  survives  Z.  Until  Z's 
death  before  the  death  of  X,  Y  has,  obviously,  only  a  contingent  re- 
mainder. Let  us  assume,  further,  that  T  is  threatening  a  destructive 
trespass  to  the  premises,  including  the  ruining  of  the  mansion  house. 
Y,  the  contingent  remainderman,  has  no  ' '  legal ' '  rights  in  rem,  for  he 
has  no  vested  rights,  etc.,  but  only  "possibilities" — i.e.,  potential 
rights,  privileges,  etc.^°^ 

Has  he  not,  however,  actual,  exclusively  equitable  rights  in  rem, 
that  is.  respective  multital  rights  against  T  and  other  persons  indis- 
criminately that  they  shall  not  seriously  and  permanently  harm  the 
land  ?  There  are  numerous  decisions  to  the  effect  that  Y  has  an  ex- 
clusively equitable  right  that  the  life  tenant,  X,  shall  not  commit 
"waste."  It  is  clear,  also,  that  the  reasons  are  equally  great  for 
recognizing  exclusively  equitable  rights  against  persons  in  general 
that  they  shall  not  harm  the  land  and  defeat  the  "legal"  (i.e.,  con- 
currently legal  and  equitable)  rights,  privileges,  etc.,  of  the  remainder- 
man if  his  estate  should  ever  vest  "in  interest"  and,  ultimately,  in 
"possession  and  enjoyment," — that  is,  exclusively  equitable  multital 
rights,  or  rights  in  rem.  The  dicta  in  the  cases  relating  to  waste  afford 
strong  support  for  this  conclusion. ^^^  Similarly,  suppose  that  J  con- 
veys the  absolute  legal  title  of  Greenacre  to  K  to  secure  a  debt  of 
$10,000,  the  agreement  being  that  K  is  to  be  entitled  to  possession 
until  the  maturity  of  the  debt  and  that  when  the  debt  is  paid  K  is  to 

quoted  ante,  n.  11.  The  learned  judge  there  refers  to  a  proceeding  under  a  writ 
of  assistance  as  a  means  by  which  the  "strict  primary  decree  in  personam"  of  a 
«ourt  of  equity  could  sometimes  be  ' '  enforced  in  rem. ' ' 

Consider  also  the  power  of  a  court  of  equity  to  proceed  [quasi]  in  rem  in  mort- 
gage foreclosure  cases:  extinguishment  of  the  "equity  of  redemption."  Cf.  Paget 
V.  Ede  (]874),  L.  R.  18  Eq.,  118. 

109  This  statement  should,  in  strictness,  be  qualified. 

Even  at  common  law  the  contingent  remainderman  had  the  actual,  or  present, 
legal  power  to  ' '  release ' '  his  interest  to  the  owner  of  the  estate  in  possession.  The 
power  to  devise,  and  the  power  to  make  a  so-called  "equitable  assignment"  should 
also  be  considered. 

Very  generally  the  contingent  remainderman  now  has,  as  a  result  of  statute,  the 
present  legal  power  to  alienate  his  potential  interest  inter  vivos. 

110  Compare  the  following  statements  from  judicial  opinions: 

.  Mr.  Justice  Battle,  in  BrasweU  v.  Morehead  (18.52),  45  N.  C,  26.  28: 
* '  Owners   of   executory   bequests,   and   other   contingent    interests,    stand   in    a 


AS  APPLIED  IX  JUDICIAL  REASONING  113 

reconvey  the  al)solute  lej^al  title  to  J.  While  K  is  thus  in  possession, 
JM  threatens  to  cut  down  the  ornamental  trees  on  the  place.  If  the 
threatened  acts  were  committed,  J  would  of  course  liavf-  no  legal 
remedy,  since  the  "legal"  rights  in  nm  (i.e.,  rights  concurrently  legal 
and  equitable ),^^^  are  now  vested  in  K.  It  would,  however,  seem  clear 
on  prnieiple  that  J  is  entitled  to  an  injunction  against  ]M,"-  or,  in 
other  words,  that  J  has  exclusively  equitable  )nultifal  rights,  or  rights 
in  rem,  relating  directly  to  the  physical  corpus  of  the  property.  The 
nature  of  the  equitable  rights,  privileges,  powers,  and  imiiiuinties  of 

position,  in  this  respect,  similar  to  vested  remaindermen,  and  have  a  similar  right 
to  the  protective  jurisdiction  of  the  Court"  (i.e.,  court  of  chancery). 

Mr.  Justice  Connor,  in  Latham  v.  Eoanol-e,  etc.,  Co.  (190.5),  51  8.  E.  (X.  C), 
780: 

"The  interest  of  a  contingent  remainderman  in  the  timl)er  will  he  protefte<l  bv 
a  court  of  equity  by  injunction." 

Mr.  Justice  Shaw,  in  Pavkovitch  v.  Southern  Pacific  E.  Co.  (1006),  150  Cal., 
39,  50: 

"The  plaintiff's  interest  is  not  vested  (Civ.  Code,  sees.  693,  695)  ;  and  hence  he 
has  no  present  property  in  the  rock  removed,  for  the  value  of  which  damages  can 
be  computed,  or  to  which  he  could  have  the  right  of  present  possession.  .  .  .  But 
the  rule  is  different  ^vith  regard  to  the  equitable  remedy  by  injunction.  The 
owner  of  a  contingent  interest  may  protect  that  interest  against  deterioration  or 
destruction  by  enjoining  a  threatened  waste." 

Ill  For  the  classification  of  jural  relations  as  "concurrently  legal  and  equitable" 
and  "exclusively  equitable,"  see  The  Relations  between  Equiin  and  Law,  (1913) 
11  Michigan  Law  Review,  537,  reprinted  infra. 

'i^^- Smith  V.  CoUyer  (1803),  8  Ves.,  89,  seems  to  have  been  such  a  case.  The 
injunction  was,  to  be  sure,  refused  by  Lord  Eldon, — solely  on  the  ground,  however, 
that  at  that  time  bills  to  enjoin  a  "trespass"  as  distinguished  from  "waste"  had 
not  yet  been  definitely  sanctioned  by  the  court.  Counsel  for  plaintiff  argued: 
"The  plaintiffs  have  no  means  of  preventing  or  redressing  this  at  law,  the  mort- 
gagee having  the  legal  title;  and  the  mischief  will  ])e  irremediable."  Lord  Eldon 
replied:  "I  do  not  recollect  any  instance  of  this  sort.  ...  It  is  not  waste,  but 
trespass  by  their  own  showing.  There  was  no  instance  of  an  injunction  in  trespass 
till  the  case  before  Lord  Thurlow  upon  a  mine;  to  which  I  have  alluded;  which, 
though  trespass,  was  very  near  waste.  In  that  case,  the  first  instance  of  granting 
an  injunction  in  trespass,  there  was  no  dispute  \^■hatsoever  about  the  right.  Here 
the  right  is  disputed." 

See  also  Mr.  Justice  Brewer,  in  ^Vilson  v.  EockircU  (1886).  20  Fcil.,  674: 

"The  facts  stated  in  the  bill  give  complainants  a  clear  right  to  a  preliminary 
injunction.  It  is  immaterial  whether  the  legal  title  be  in  complainants  or  the 
Woodmass  of  Alston  Company.  The  dispute  between  them  does  not  concern  tres- 
passers. Both  parties  are  in  court,  the  company  being  made  defendant.  The  full 
equitable  title  or  ownership  is  with  complainants,  and  a  court  of  equity  will  protect 
the  owners,  as  against  trespasser's,  although  the  location  of  the  legal  title  has  not 
been  finally  determined." 

In  such  a  case  as  that  relating  to  mortagor  and  mortgagee,  the  situation  is  not 
fundamentally  different  from  that  of  In  re  Xisbet  4'  Potts'  Contract  [1906],  1  Ch., 


114  FUNDAMENTAL  LEGAL  CONCEPTIONS 

the  cestui  que  trust  is  too  large  a  subject  for  adequate  treatment  in  the 
present  place ;  and  so  any  further  consideration  of  that  interesting 
subject  must  be  reserved  for  another  occasion.^^^  It  is  hoped,  however, 
that  the  various  classes  of  rights  and  remedies  already  discussed  are 
sufficient  to  show  that  the  intrinsic  nature  of  substantive  primary 
rights — whether  they  be  rights  in  rem  or  rights  in  personam — is  not 
dependent  on  the  character  of  the  proceedings  by  which  they  may  be 
vindicated."* 

Wesley  Newcomb  Hohfeld. 
Yale  University,  School  of  Law. 

386 — a  case  indicating  that  the  equitable  beneficiary  of  a  restrictive  agreement 
relating  to  land  (sometimes  called  an  "equitable  easement")  has  rights  even 
against  wrongful  possessors,  or  disseisors,  of  the  ' '  servient ' '  land  that  they  shall 
not  act  contrary  to  the  terms  of  the  restrictive  agreement.  In  the  latter  case,  as 
in  that  of  the  mortgagor  and  mortgagee,  the  legal  owner  of  the  land  on  which  the 
acts  of  the  defendant  are  done  is  not  the  equitaile  "agent"  or  "guardian"  of 
the  equitable  beneficiary;  and  hence  the  grounds  are  peculiarly  strong  for  giving 
to  the  equitable  beneficiary  direct  equitable  rights  against  all  persons  in  respect 
to  the  physical  corpus. 

113  See  The  Selations  hetween  Equity  and  Law,  (1913)  11  Michigan  Law  Eeview, 
537,  reprinted  infra,  where  the  writer  has  sought  to  analyze  most  of  the  elements 
comprised  in  the  interest  of  a  cestui  que  trust. 

See  also  Supplemental  Note  on  the  Conflict  of  Equity  and  Law,  reprinted  infra. 

11*  Compare  Bacon,  Uses  {circa  1602),  Eowe's  ed.,  5-6;  "So  that  usus  4'  status, 
sive  possessio,  potius  differunt  secundum  rationem  fori,  quam  secundum  naturam 
rei,  for  that  one  of  them  is  in  court  of  law,  the  other  in  court  of  conscience. ' ' 

Compare  also  Lord  Dunedin,  in  Nocton  v.  Ashinrton  [1914],  A.  C,  932,  964: 

"And  then  there  are  the  duties  which  arise  from  a  relationship  without  the 
intervention  of  contract  in  the  ordinary  sense  of  the  term,  such  as  the  duties  of  a 
trustee  to  his  cestui  que  trust  or  of  a  guardian  to  his  ward.  It  is  in  this  latter 
class  of  cases  that  equity  has  been  peculiarly  dominant,  not,  I  talce  it,  from  any 
scientific  distinction  between  the  classes  of  duty  existing  and  the  breaches  thereof, 
but  simply  because  in  certain  cases  where  common  justice  demanded  a  remedy,  the 
common  law  had  none  forthcoming,  and  the  common  law  (though  there  is  no  harder 
lesson  for  the  stranger  jurist  to  learn)  began  with  the  remedy  and  ended  with  the 
right. ' ' 


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